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I'd love some help from you guys. I got a summons and complaint 7 days ago. I've literally been doing nothing but researching for the past week. Also, I applied for legal aid, but have little hope they will help. They aren't even slated to contact me until next week. I'm going to be honest with you guys. I need a hand to hold. I have no idea what I'm supposed to do and it feels like a bottomless pit. I have a couple weeks until the deadline. 

 

So here are the facts, thus far:

 

1. I received a summons and complaint between my screen door and main door -along with the business card of the process server- last Monday. I plan to draft a motion to dismiss for insufficiency of service of process under  Title 12 of the Oklahoma Statutes § 12-2012(b)(5) and  § 12-2004. I've drafted a motion for this, along with a very basic Memorandum and Points of Authority outlining and quoting the above laws (basically stating that service wasn't valid because it wasn't given to me face to face. I plan to also write an affidavit and add it. I know that I have to send a copy of this to the other side and add a section that certifies that I sent it. 

 

QUESTION 1: Do I need to file an Notice of Appearance or a statement that I am representing myself Pro Per/Se?

 

DISCUSSION: It might seem a little petty, but I feel like it is my right to be processed competently, and if this is the current local practice, it needs to be nipped in the bud. Also, I could use the extra time to respond seeing as how I am not a legal expert and it takes time to learn this stuff. In fact, I thought about motioning "TO DISMISS PURSUANT TO RULE 12(B)(5) FOR INSUFFICIENCY OF PROCESS OR IN THE ALTERNATIVE, EXTENDED TIME TO ANSWER OR RESPOND TO COMPLAINT." But I don't know if that second ask will make me waive my right to other defenses that I might want to keep.

 

2. They sent an "Affidavit of Indebtedness" --the official complaint calls it an 'Affidavit of Account' and I would love to point out that distinction if its ever useful to me, but i figure its just a small error and oversight. Still, I have an English degree and we are only second to lawyers about pointing out this sort of error-  So the Affidavit is actually pretty much blubber and hearsay. No surprise there. In fact, I pretty much found the exact text of this affidavit online. I'm guessing it's an auto-form document.  So, I'd like to motion to strike it from evidence or at least take all the teeth out of it because of the hearsay.  

3. The complaint states that (specific info redacted)  "1. BUBBA GUMP CREDITOR provided credit to the defendant on account number BUNCH-A-NUMBERS. Defendant defaulted on the obligation. The account has been assigned to Plaintiff. 2. Defendant owes Plaintiff $3333.33. An Affidavit of Account is attached hereto and incorporated by reference." 

 

4. The Affidavit of Indebtedness (County of Stearns, Minnesota -- where all the women are strong, all the men are good looking, and all the children are above average, no doubt) states:

(SPECIFIC INFO REDACTED)

“PATSY MIDLAND, whose business address is 16 McLeland Road Suite 101, St. Cloud, MN 56303, certifies and says:

1.      I am employed as a Legal Specialist and have access to pertinent account record for Midland Credit Management, Inc. (“MCM”), servicer of this account on behalf of Plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained on Plaintiff’s behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to Defendant’s BUBBA GUMP account XXXXXXXXX0000 (MCM Number 0000000) (hereinafter “the account”). I have access to and have reviewed the electronic records pertaining to the account maintained by MCM and am authorized to make this affidavit on Plaintiff’s behalf. The electronic records reviewed consist of data acquired from the seller when Plaintiff purchased the account, together with records generated by MCM in connection with servicing the account since the date the account was purchased by Plaintiff.

2.      I am familiar with and trained on the manner and method by which MCM creates and maintains its business records pertaining to this account. The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record or compilation is made at or near the time of the act or event.

3.      MCM’s records show that Defendant(s) owed a balance of $3333.33 as of 2017-08-21.

4.      On or about 2016-11-16, MIDLAND FUNDING LLC became the successor in interest to this account.

5.      Based on my review of MCM’s business records, 1) Defendant(s) opened the BUBBA GUMP CREDIT account on 2013-01-11; 2) the last payment posted to the account on 2016-03-22; and 3) the account was charged off on 2016-10-23.

6.      On or about 2016-10-23, the account was sold from BUBBA GUMP CREDIT to ANOTHER CREDIT SERVICE L.L.C.. The account was then sold to the following debt buyers in order of occurrence on or about:

1.      2016-11-16, MIDLAND FUNDING LLC

7.      If called to testify as a witness thereon, I could and would competently testify as to all the facts stated herein.

I certify under penalty of perjury that the foregoing statements are true and correct.”

 

5. This is the only paperwork I have received. And I see a dozen other things I can possibly do. For example, I am a member of a federally recognized tribe living within that tribe’s jurisdiction on property owned by said tribe, in a house owned and leased by said tribe. I even work for said tribe. Technically, I could claim that the court lacks jurisdiction. But, then, I would have to do more research on tribal law (which probably mirrors state and federal law). I would gain no advantage other than time, and possibly lose several advantages.

Something else I have been toying with (but admit I don’t know if it applies) is filing to dismiss for failure to state a claim based on threadbare recital/mere conclusory allegations, based on Twombly & Iqbal.

Still another thing I could do is motion for the production of documents. Or send a letter of Debt Verification. Not to mention other Affirmative Defenses like Failure to Consider etc etc etc.

 

But I don’t want to be frivolous about this.

 

So, QUESTION 2: Do I roll some or all of these things in a big motion and slap them with it? Or do I motion the insufficient service first, and strategically collate a few of the other issues I can raise?

 

Mainly, I fear waiving my rights to certain defenses if I do things in the wrong order. I want to bring up the insufficient service. I want to strike the affidavit as hearsay. I want to force them to produce any documents they have (And I’d just love to send THEM interrogatory during discovery.)

 

But, I must say, my head is spinning and I have no idea where to start. Someone, please pull me to earth and pave the way. I can do the work and research, but the direction is lacking.

 

Thanks for all the help, guys.

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The problem with word-games, is that Midland has the facts on their side. Courts don't have time for a defense that consists solely of parsing the other guy's verbiage. As for the service, if it was invalid, they will simply re-serve - they know they have the right person.

Who was the original creditor? Your only hope is if it is a card with a serviceable arbitration clause. You can defend yourself in court, but you will lose. Maybe the experience will be fun, but I assure you, it will go much quicker than you expect:

You: "Your Honor, I'd like to point out this laundry list of flaws in plaintiff's case. One..."

Judge: "Is this your name and address on this pile of CC statements?"

You: "Er, yes, but..."

Judge: "Judgement for plaintiff. Next case!"

 

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There are no CC Statements. All there is is the affidavit of indebtedness. The Original Creditor is one "Webbank." And if I'm being completely honest, I have no idea if the debt is valid or not. I can say with 100% honesty that I can't admit or deny anything. Should I send a Debt Verification letter to figure out what they have? They certainly haven't sent me anything that would prove there is an original contract or anything. 

Any useful suggestions?

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18 minutes ago, TakeMidlandD0wn said:

Should I send a Debt Verification letter to figure out what they have?

WAY too late for that they have already sued and served you.  Now you have to do discovery according to the rules of civil procedure for your court to find out what evidence they intend to use.  

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2 hours ago, Clydesmom said:

WAY too late for that they have already sued and served you.  Now you have to do discovery according to the rules of civil procedure for your court to find out what evidence they intend to use.  

When do I do discovery?

Should I ignore the motions to dismiss?

I also just found out that in the complaint that they used the full account number of the debt, which is directly against LCVR 5.3 (local court rules).... so I should just ignore that, as well?

I guess I'm just trying to see a path to walk on this. I can take critique, but I don't see my "next step" in what anyone is saying. I can seek arbitration.. possibly. I can do a discovery... possibly.

Here is how I see it:

1. I wasn't served correctly.

2.  They broke local court rules and used a full account number.

3. Their Affidavit is as a matter of fact full of hearsay.

4.  etc. etc. etc.

These are indisputable facts. And yet, am I to understand that it is pointless for me to argue about them? I should just let them go? If so, what is my next step? That was the point of my OP. That is the central theme of everything I wrote. I am at a loss. It seems to me that there are a hundred things I *could* do. But not many that I *should* do.  

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1 hour ago, TakeMidlandD0wn said:

1. I wasn't served correctly.

No you weren't but the best case outcome on this is they quash that service and then do it again right.  It will buy you time but it is not going to make the case go away.  They are well within the SOL and will simply do service again.

1 hour ago, TakeMidlandD0wn said:

2.  They broke local court rules and used a full account number.

Clerical error that the court will allow them to correct because it doesn't cause you harm in the case.  Minor infraction.

1 hour ago, TakeMidlandD0wn said:

3. Their Affidavit is as a matter of fact full of hearsay.

Something to be challenged at a trial.  The court determines this based on the preponderance of the evidence on that affidavit.

6 hours ago, TakeMidlandD0wn said:

QUESTION 1: Do I need to file an Notice of Appearance or a statement that I am representing myself Pro Per/Se?

If you are going to attempt to dismiss this based on improper service:  NO.  This is admitting you were properly served and are going to proceed to trial.

1 hour ago, TakeMidlandD0wn said:

Should I ignore the motions to dismiss?

You have nothing to lose by trying.  Keep in mind that ALL it will do is buy you a little time and you better have an answer ready in case your motion is denied.  

1 hour ago, TakeMidlandD0wn said:

When do I do discovery?

You need to decide what path you are going to take on this.  Are you going to motion to compel arbitration?  If so, you need to do that first.  You also need to check your court and see if you can even do discovery.  Some small claims courts do not allow it or have a very specific procedure for doing it.  

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Webbank for which store?  The card agreement has arbitration in it.  If this were me, I would file a Motion to Compel Arbitration per the card agreement and get this thing out of court ASAP.  Midland will never arbitrate, so getting the court to grant your MTC is like a golden ticket to dropping this case against you and "settling" for $0.

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Thanks guys. I guess I’m going in with guns a blazing but that isn’t always the smartest thing to do. The internet is full of bad ideas that sound good, I suppose.

Which store? It appears like it was through Dell Financial. 

Now here is the question: There is no card agreement in the paperwork. I certainly don’t have one. Is the judge going to ask for it? Where do I get it? 

Am I lying by giving him one if I don’t have any memory or knowledge of this debt?

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You find an agreement here: https://www.consumerfinance.gov/credit-cards/agreements/

Banks are required to post them here, so when the plaintiff complains that this is just something you "found on the internet," they are being disingenuous.

Understand that we have all been through this directly, and have watched many others. Unfortunately it has been harder than it should be to quash the notion that these cases are still somehow "winnable" in court. Arbitration, as laid out by Mr. F. H. Cheese, is the only thing proven to be consistently successful in defeating these suits,

 

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@TakeMidlandD0wn Here's a 2016 Dell Preferred WebBank agreement. The arbitration section is found on pages 5-7:

http://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/6_2016_WebBank Dell Preferred Credit Agreement, Rates and Terms.pdf

If the full account number of the alleged original account is disclosed in the complaint, you might call WebBank or Dell to request a copy of cc agreement that govern s the account in question be sent to you. 

FYI--Electing/demanding arbitration rather than court to settle any dispute governed by the agreement is a choice of forum to hear the dispute.

http://www.okbar.org/members/BarJournal/archive2012/JanArchive12/obj832ricketts.aspx

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Awesome guys! I see here that I have to choose the arbiter (AAA or JAMS) when I file the motion. Now.... I have read that AAA will not arbitrate anything for MIDLAND FUNDING anymore (letter dated August 2016).  If I choose AAA it would make the clause unenforceable? So I better choose JAMS. Is this correct?

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3 hours ago, TakeMidlandD0wn said:

The internet is full of bad ideas that sound good, I suppose.

Absolutely.   A rule of thumb as to whether or not ideas are good or bad is if the person(s) who puts forth those ideas supports them with laws and court rulings.  

You'll find sites that promote "securitization" and "sovereignty" in regard to credit cards.   Courts have ruled against those claims.

Another claim you might find is "right of subrogation".   There's no case law at all connecting subrogation to credit cards.   Only personal opinions are offered.  Well, personal opinions of people on websites are neither persuasive or binding on courts.   When you need to support a claim, "because John Doe on www.bunchofadvice.com said so" means nothing.

Some people on some sites will cite statutes (such as the FDCPA), but they don't provide court rulings to support their interpretations of statutes.   That usually means they haven't looked for court rulings, no rulings may have been issued on a particular section of a statute, or the courts disagree with their interpretations.

When I visit a site that offers mostly personal opinion and  little to no case law, I go elsewhere. 

This site is loaded with case law.  We're lucky to have good members on this site who support their claims with court rulings whenever possible.  If no support is available, they'll let you know that they're merely offering their opinions. 

I wish the people who offer those "ideas" would come here for a friendly debate, but I don't see that happening.

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On 1/9/2018 at 11:13 AM, TakeMidlandD0wn said:

Thanks guys. I guess I’m going in with guns a blazing but that isn’t always the smartest thing to do. The internet is full of bad ideas that sound good, I suppose.

Which store? It appears like it was through Dell Financial. 

Now here is the question: There is no card agreement in the paperwork. I certainly don’t have one. Is the judge going to ask for it? Where do I get it? 

Am I lying by giving him one if I don’t have any memory or knowledge of this debt?

No, you aren't lying you are using THEIR information in the law suit.  They claim there was a Dell account through Webbank that you allegedly owe money on.  So, getting a Dell webbank agreement from the date they claim you allegedly defaulted from the bank itself (as they are required to post the agreements to the CFPB website by law) is simply you providing the agreement that "to the best of your knowledge" is the underlying agreement according to the Plaintiff's allegations. 

It doesn't even harm your case, as some may think, to admit that you are a party to this card agreement.  All that means is that you admit to one time having an account with Dell/webbank.  It does not mean you are admitting that Midland owns this account, has standing to bring suit, or that you owe any money at all to anyone.

I would use JAMS.  It really doesn't matter, because Midland will refuse to participate with both AAA and JAMS.  AAA will accept a case with a granted MTC from a court, so don't let the fact that some people get that refusal letter regarding midland be any factor here.  Just ask for JAMS arbitration and go with it.

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55 minutes ago, fisthardcheese said:

I would use JAMS.  It really doesn't matter, because Midland will refuse to participate with both AAA and JAMS.  AAA will accept a case with a granted MTC from a court, so don't let the fact that some people get that refusal letter regarding midland be any factor here.  Just ask for JAMS arbitration and go with it.

I have a question about this.  If there is a MTC and @TakeMidlandD0wn files for arbitration with AAA, will AAA make it a little tougher on Midland because they already have a bad reputation with them?  I understand that Midland's attorneys will do their best to avoid arbitration but if it did get that far.....would AAA be hard on them?  Or does it really not matter because if the MTC is granted Midland will drop the case (even though I have seen a couple of posts on here where they do go through with it).

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Do i need to send a letter to the plaintiff stating that I elect arbitration? If so, what needs to be in it? Anything special or is "I elect arbitration in your case against me" good enough?

If I elect arbitration, does that mean that I have to file for arbitration or does it just kick the ball back to their court?

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@TakeMidlandD0wn

For example, I am a member of a federally recognized tribe living within that tribe’s jurisdiction on property owned by said tribe, in a house owned and leased by said tribe. I even work for said tribe. Technically, I could claim that the court lacks jurisdiction. "

It's not easy to collect debts if you reside on Indian land.  Read this article:

https://www.linkedin.com/pulse/20140710173720-1918722-native-american-indian-judgments

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9 hours ago, cshot37 said:

I have a question about this.  If there is a MTC and @TakeMidlandD0wn files for arbitration with AAA, will AAA make it a little tougher on Midland because they already have a bad reputation with them?  I understand that Midland's attorneys will do their best to avoid arbitration but if it did get that far.....would AAA be hard on them?  Or does it really not matter because if the MTC is granted Midland will drop the case (even though I have seen a couple of posts on here where they do go through with it).

AAA will not make it harder.  It is irrelevant.  Once you have a granted MTC from a court, AAA will accept the case.  They only send the "rejection" letter if you filed without an MTC, which means you would then have to go to court and get that MTC for AAA to accept the case.  But if you are already in court, there is nothing to worry about.  Just file in AAA with a copy of the court's granted MTC order.

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8 hours ago, TakeMidlandD0wn said:

Do i need to send a letter to the plaintiff stating that I elect arbitration? If so, what needs to be in it? Anything special or is "I elect arbitration in your case against me" good enough?

If I elect arbitration, does that mean that I have to file for arbitration or does it just kick the ball back to their court?

I, personally, don't bother with a letter.  They already sued, so when you send a copy of your MTC to them, they will have been noticed of your intention to arbitrate.  Once the court grants your MTC, yes, you will have to file the arbitration case in JAMS or AAA.

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@fisthardcheese If OP has a MTC that has been approved doesn't that mean that the court is telling the JDB to take their case to arbitration and that the JDB has to file the claim with either JAMS or AAA?  I know that it would always be best for the OP to wait a couple of weeks and if they have not heard anything at least submit the paperwork to JAMS or AAA requesting that JDB pays for all fees just to prove to the court that even though JDB refuses to follow a court order you did the work for them anyway, which may be grounds for sanctions or (if lucky enough) dismissal with prejudice.

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So, Legal Aid just got back to me. The lawyer is telling me:

1. Just answer and deny everything because Love, Beal, & Nixon haven't provided anything but an affidavit.

2. Not to attach the contract.

3. But still request arbitration.

I am supposed to do this in a layman's way. No Memorandum, handwritten is perfectly fine. No fancy language. She is telling me to literally type out:

"I deny all counts of the complaint. I have no knowledge of this debt. Please, have the plaintiff send all of their documentation of this debt to me. Also, I move this court to compel arbitration." signed me. certification of sending it to them signed by me. No notary needed. No memorandum. Nothing more than that.

She is an older "good old boy" type of person. I can tell she has been around the block a few times. She has everything on my case and says that I haven't even been assigned a judge yet. Should I take her advice and play the dumb country boy? I mean... she says that discovery could come next, or they could schedule a meeting, or any of a number of things.

What would you guys do? @fisthardcheese @Goody_Ouchless @BV80 @Brotherskeeper @Clydesmom Thank you guys for all the help. 

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I would find the correct format and verbiage for Motions under Oklahoma Rules of Civil Procedure, or whatever they call them. Maybe they will accept an answer (general denial) written in crayon, but you don't want to give them any leeway to contest your motion to compel, if it gets that far.

See following link - it lists all statutes relevant to arbitration. 

Oklahoma Arbitration

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Section 1858 - Refusal to Arbitrate - Absence of Enforceable Agreement - Court Orders to Arbitrate A. On application and motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement: 

2. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate. The court may also tax costs against the party opposing the motion if the court concludes the opposition was not brought in good faith.

Now that's nice - court can hit them in the pocket book if they use any of the old canards to oppose arbitration!

 

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@Goody_Ouchless Good call. I found this in a similar case:

"Oklahoma Statute title 12, §1856 states: "[A]n application for judicial relief under the Uniform Arbitration Act must be made by application and motion to the court and heard in the manner provided by law or rule of court for making and hearing motions." 12 O.S. Supp. 2005 §1856(A). The Oklahoma Supreme Court in Rogers v. Dell Computer Corp.2005 OK 51
138 P.3d 826
interpreted this provision as requiring a moving party to comply with Rule 4 of the Oklahoma Rules for District Courts:

Under rule 4 of the ORDC (Oklahoma Rules for District Courts), the party seeking to compel arbitration must present a statement of the law and facts showing an enforceable agreement to arbitrate the issues presented by the petition. The application to compel arbitration must be supported by affidavits, pleadings, stipulations, and other evidentiary materials which are verified by a person having knowledge of their accuracy."

My only question is: If it has to be "supported by affidavits, pleadings, stipulations, and other evidentiary materials. *verified* by a person having knowledge of their accuracy" do I just add an affidavit from myself to it saying "I had this debt and this is the agreement I had with the OC?"

Because, the fact remains that they havent proven their case that this is my debt and I still don't know that it is.  I don't want to hurt myself should it come to arbitration. I still want them to prove everything they are supposed to prove. 

At this point, and as I have learned more about this, their petition is faulty on every single point. I have a million things I could do.

If I arbitrate, it sounds more and more like I have to admit the debt is mine in the first place, which sounds like a big no-no, especially since I don't actually know this to be true.

But if I understand it correctly, the choices are:

1. Nit pick all the faults in their case and make them produce documentation, which, if pushed far enough they will do, and I will lose.

2. Admit the debt up front, but compel arbitration, and the cost-benefit analysis will cause them to balk at pursuing the case any further.

But if it comes to arbitration... then asking for arbitration will have cemented their case against me, right?

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As Fist has said, you are over-thinking this. They are the ones that sued on a specific type of CC. You will provide a copy of an agreement for that CC from CFPB website along with and affidavit from you saying it applies to best of your knowledge.

OK rules follow federal standard and are very clear that arbitration must happen if an agreement exists - which it does.

Fist already explained your fear of admission - just say you have had cards from that bank, but there's no proof that Midland even owns this one, or whatever. If that even comes up. 

Arbitration with a debt buyer follows three steps:

1) You compel

2) They lie in an attempt to scare you

3) They fold

 

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