Being Sued by Midland Funding LLC in Texas

[Texasgirl2017]

I was served papers by ( someone that works in the court), I assume but not by a constable or sheriff on Feb 6, 2018.  Midland Funding LLC is suing me in Justice of the Peace court for a debt they bought from Credit one Bank (credit card company).  I have 14 days to respond with my answer which I am going to do so I don't go into default.  I read the court rules and it says I can file a motion for dismissal in 14 days so I thought I would wait until the very last day to file my answer with the motion of dismissal.  Can someone please direct me on what to do for sure?  I do not want to hire an attorney unless I absolutely have to.  For one, the attorney fees would be just about what they are suing me for which is $2000.68.  So, I would rather represent myself, with that being said, I of course am reading everything I can and trying to get answers before hand.  I have attached the front and back of the papers that I tried to blackout my personal info.  Please help.

Midland_Funding_Back_blackout.pdf

Midland_Funding_Front_blackout.pdf

[Goody_Ouchless]

Check out posts on Arbitration as that has proven effective.

Your case is unique, in that your account changed hands several times:

Credit One -> MHC -> Sherman -> Midland.

While Midland complies with business record exemption by describing how these records were incorporated into their own, it could be argued that the same can't be said for MHC and Sherman. If you could somehow force them to provide live witnesses from MHC and Sherman they would probably drop case.

There are others here that are much more versed in TX rules of civil procedure who can guide you through the process.

 

[Clydesmom]

1 hour ago, Goody_Ouchless said:

Check out posts on Arbitration as that has proven effective.

JP Court in Texas IS small claims and Credit One has a carve out for arbitration and small claims cases.  It won't be an option unfortunately. 

2 hours ago, Texasgirl2017 said:

I read the court rules and it says I can file a motion for dismissal in 14 days so I thought I would wait until the very last day to file my answer with the motion of dismissal.

What would be the basis for your dismissal?  Yes, you CAN file for it but you have to have a legal basis to do so.  I can tell you that JP court almost NEVER grants a motion for summary judgment or a dismissal absent a 1000% solid reason.

[Harry Seaward]

17 minutes ago, Clydesmom said:

JP Court in Texas IS small claims and Credit One has a carve out for arbitration and small claims cases.  It won't be an option unfortunately. 

@Texasgirl2017 It would be up to Midland to raise and prove this argument. They may not. And if they do, you have lost nothing by trying.

The problem I see with arbitration is that we are currently monitoring a case in which Midland seems to be going right along on the arbitration party bus. The Credit One arb agreement is not very consumer friendly in terms of fees, so there's a good chance you could get stuck with a bunch of arbitration fees that you wouldn't have if the case stays in court. 

In this case I think attacking the 4-owner chain of custody is your best shot. And it's going to take a lot of effort and time on your part. 

[texasrocker]

1 hour ago, Clydesmom said:

JP Court in Texas IS small claims and Credit One has a carve out for arbitration and small claims cases.  It won't be an option unfortunately. 

What would be the basis for your dismissal?  Yes, you CAN file for it but you have to have a legal basis to do so.  I can tell you that JP court almost NEVER grants a motion for summary judgment or a dismissal absent a 1000% solid reason.

The only way a motion for dismissal will be granted in a Texas civil suit is if the court can be convinced that the lawsuit has no basis in law or fact.

[Texasgirl2017]

I have been reading and so I see where you are telling someone to ask for dismissal when filing their answer.  You are attaching forms that show what needs to be said and of course the facts are in the paper work.  I do not owe Midland Funding LLC anything.  They buy debts from creditors.  I really do not know what to do in this case.  I have attached my paperwork.  If someone would look at it and tell me what to do, I would appreciate it.  I have to file my answer by Tuesday the 20th. 

[debtzapper]

2 hours ago, Texasgirl2017 said:

I have been reading and so I see where you are telling someone to ask for dismissal when filing their answer.  You are attaching forms that show what needs to be said and of course the facts are in the paper work.  I do not owe Midland Funding LLC anything.  They buy debts from creditors.  I really do not know what to do in this case.  I have attached my paperwork.  If someone would look at it and tell me what to do, I would appreciate it.  I have to file my answer by Tuesday the 20th. 

@Texasgirl2017

 Midland bought the debt, so they can rightfully sue you for it.  If you live in or near Houston, the Univ of Houston Law School has a Consumer law clinic and will represent you for free if you are low income.

http://www.law.uh.edu/clinic/consumerlaw.asp

In San Antonio, St Mary Law School has one too.
https://law.stmarytx.edu/academics/special-programs/center-legal-social-justice/clinical-program/#civiljustice

If you live near Dallas, call Jerry Jarzombeck, one of the finest consumer lawyers in the entire country.  His website is down, but you can call him at 817-348-8325. I actually just called him a few minutes ago to make sure he was still in practice and he took my call and  said he would give you a free consultation.  If he takes your case, his fee is well worth it.

[Clydesmom]

On 2/9/2018 at 1:49 PM, Goody_Ouchless said:

Your case is unique, in that your account changed hands several times:

Credit One -> MHC -> Sherman -> Midland.

Actually it has only changed hands once.  The Sherman Group owns a long list of entities including Credit One and MCH Receivables.  The only actual transfer is from first 3 entities to Midland which is not owned by the Sherman Group.  Basically the first 2 "purchases" were nothing more than an internal transfer within the corporate web to move the bad debt around on the books.  No actual "sale" took place.  It doesn't mean that the OP can't use that to fight the case but it isn't an actual transfer to 3 different owners.

 

[texasrocker]

This attorney's office is easy to beat.  They are remnants of Ahn Regent & Associates, the sleaziest of all JDB attorneys in Texas.  If you can get the court's approval to conduct discovery then I can provide you discovery that they will not want to answer.

[Texasgirl2017]

On ‎2‎/‎11‎/‎2018 at 7:12 PM, texasrocker said:

This attorney's office is easy to beat.  They are remnants of Ahn Regent & Associates, the sleaziest of all JDB attorneys in Texas.  If you can get the court's approval to conduct discovery then I can provide you discovery that they will not want to answer.

That would be great.  I do have my Request for Production letter to send to the court and also to the attorney.  What's funny is the address given for Brian Staley is a P.O. Box.  How convenient that is so that he doesn't get certified mail.  I looked on the forums and found his name associated with other attorneys at 5161 San Felipe #320 Houston 77056 so that is where I will send the certified copy with return receipt.  My hearing/trial is set for April 4th.  I have already answered and my answer of course was denial. 

 

[Texasgirl2017]

1 minute ago, Texasgirl2017 said:

That would be great.  I do have my Request for Production letter to send to the court and also to the attorney.  What's funny is the address given for Brian Staley is a P.O. Box.  How convenient that is so that he doesn't get certified mail.  I looked on the forums and found his name associated with other attorneys at 5161 San Felipe #320 Houston 77056 so that is where I will send the certified copy with return receipt.  My hearing/trial is set for April 4th.  I have already answered and my answer of course was denial. 

 

Also should I go ahead and request discovery right now.  Request for Production is asking them to provide any credit application signed by me, asking for them to produce copies of executed contract in Credit one Banks possession setting forth in terms Defendant is alleged to have agreed to in connection with card at the beginning and produce copy of any notifications to those terms specifically agreed to by defendant and produce copy of all statements from the beginning of time to present and produce detail regarding alleged charges by amount, type and date and to produce evidence of all payments received. 

[Texasgirl2017]

On ‎2‎/‎11‎/‎2018 at 7:12 PM, texasrocker said:

This attorney's office is easy to beat.  They are remnants of Ahn Regent & Associates, the sleaziest of all JDB attorneys in Texas.  If you can get the court's approval to conduct discovery then I can provide you discovery that they will not want to answer.

I meant to reply to you.  Yes , that would be great.  Should I go ahead and get approval to conduct discovery?  I am sending my Request for Production to the court and to Brian Staley which his will be certified with return receipt.  The address given in court document for him is a P.O. Box but I looked on the forums and found the address where he is at 5161 San Felipe #320 in Houston.  Anyhow, I thought I was replying to you and instead I replied to my own but you can see what I have posted.  I don't want to have to repost it all again.  Please let me know what to do next.  Thanks

[texasrocker]

15 minutes ago, Texasgirl2017 said:

Also should I go ahead and request discovery right now.  Request for Production is asking them to provide any credit application signed by me, asking for them to produce copies of executed contract in Credit one Banks possession setting forth in terms Defendant is alleged to have agreed to in connection with card at the beginning and produce copy of any notifications to those terms specifically agreed to by defendant and produce copy of all statements from the beginning of time to present and produce detail regarding alleged charges by amount, type and date and to produce evidence of all payments received. 

If you want to send discovery you must first get the court's approval to so do since it is in a JP court.  Definitely do not send anything like what you have described here.  As I said earlier I will provide you with discovery to send once the court has granted their approval.

[Clydesmom]

35 minutes ago, Texasgirl2017 said:

Request for Production is asking them to provide any credit application signed by me

The courts do not necessarily require a signed credit application since most are online these days and have a digital signature.

35 minutes ago, Texasgirl2017 said:

asking for them to produce copies of executed contract in Credit one Banks possession setting forth in terms Defendant is alleged to have agreed to in connection with card at the beginning and produce copy of any notifications to those terms specifically agreed to by defendant

Again NO.  The courts also know there is no signed contract in a credit card case.  

36 minutes ago, Texasgirl2017 said:

produce copy of all statements from the beginning of time to present

Overly burdensome and not necessary.  The final 6 months up until default will make their case for the courts.  

37 minutes ago, Texasgirl2017 said:

produce detail regarding alleged charges by amount, type and date

Irrelevant.  Details of charges would ONLY matter if you were alleging fraud or disputing a specific card with the original creditor.  

I don't know where you got this discovery from but it is REALLY bad do not use it.

On 2/9/2018 at 1:49 PM, Goody_Ouchless said:

Check out posts on Arbitration as that has proven effective.

Credit One removed arbitration as an option in small claims cases and in Texas JP court IS small claims it is not an option.

 

[Harry Seaward]

5 minutes ago, Clydesmom said:

Credit One removed arbitration as an option in small claims cases and in Texas JP court IS small claims it is not an option.

As I said before....

On 2/9/2018 at 5:07 PM, Harry Seaward said:

 It would be up to Midland to raise and prove this argument. They may not. And if they do, you have lost nothing by trying.

 

[texasrocker]

Small claims courts were abolished in Texas in 2013.

[debtzapper]

1 hour ago, texasrocker said:

Small claims courts were abolished in Texas in 2013.

https://https://www.victoriaadvocate.com/news/local/know-your-rights-small-claims-court-is-now-part-of/article_b4476573-bac6-557d-a694-

8c84d76e79e6.html/Question:Did_Texas_eliminate_its_Small_Claims_Courts%3F

http://guides.sll.texas.gov/small-claims

http://www.tyla.org/tyla/assets/

Small claims court was known as the “People’s Court” and on August 31, 2013 it was abolished by the Texas Legislature. This does not mean you can no longer file your small claims case. Instead, you will file your small claims case in Justice Court. The Legislature created a specific set of rules for Justice Court that attempt to make it even easier for a non-lawyers to represent themselves./HowToSueInJusticeCourt-SB0119E-1013_Web.pdf

So, is Justice Court really still Small Claims, but with a different name?

[texasrocker]

9 hours ago, debtzapper said:

...Small claims court was known as the “People’s Court” and on August 31, 2013 it was abolished by the Texas Legislature. This does not mean you can no longer file your small claims case. Instead, you will file your small claims case in Justice Court. The Legislature created a specific set of rules for Justice Court that attempt to make it even easier for a non-lawyers to represent themselves./HowToSueInJusticeCourt-SB0119E-1013_Web.pdf

So, is Justice Court really still Small Claims, but with a different name?

I suppose you could call it anything you wish and what most people would consider a small claims case can of course still be filed but there is no longer anything officially labeled a "small claims court" in Texas.  Just last week someone delved much deeper into it on this forum explaining the legal differences between a small claims case and a debt collection case before I had seen the thread.  I don't have the time to look for it right now but if no one else has brought it up before I get home from work tonight I will show you then.

[Brotherskeeper]

@texasrocker I think this is the thread.

Justice Court Case Types
Small Claims

A small claims case is a lawsuit brought for the recovery of money damages, civil penalties, personal property, or other relief allowed by law. The claim can be for no more than $10,000, excluding statutory interest and court costs but including attorney fees, if any. Small Claims cases are governed by Rules 500-507 of Part V of the Rules of Civil Procedure.

Debt Claim

A debt claim case is a lawsuit brought to recover a debt by an assignee of a claim, a debt collector or collection agency, a financial institution, or a person or entity primarily engaged in the business of lending money at interest. The claim can be for no more than $10,000, excluding statutory interest and court costs but including attorney fees, if any. Debt Claim cases in justice court are governed by Rules 500-507 and 508 of Part V of the Rules of Civil Procedure.

RULE 508. DEBT CLAIM CASES

RULE 508.1. APPLICATION

Rule 508 applies to a claim for the recovery of a debt brought by an assignee of a claim, a financial institution, a debt collector or collection agency, or a person or entity primarily engaged in the business of lending money at interest.. . .

RULE 508.2. PETITION

(a) Contents. In addition to the information required by Rule 502.2, a petition filed in a lawsuit governed by this rule must contain the following information:

(1) Credit Accounts. In a claim based upon a credit card, revolving credit, or open account, the petition must state:

     (A) the account name or credit card name;

     (B) the account number (which may be masked);

     (C) the date of issue or origination of the account, if known; 

     (D) the date of charge-off or breach of the account, if known;

     (E) the amount owed as of a date certain; and

     (F) whether the plaintiff seeks ongoing interest. . . .

(4) Assigned Debt. If the debt that is the subject of the claim has been assigned or transferred, the petition must state:

     (A) that the debt claim has been transferred or assigned;

     (B) the date of the transfer or assignment;

     (C) the name of any prior holders of the debt; and

     (D) the name or a description of the original creditor.

[Texasgirl2017]

21 hours ago, texasrocker said:

Small claims courts were abolished in Texas in 2013.

I will call jp court on Monday and see how I go to ask if I can ask for Discovery in my case.  Why would sending a request for production not be good?  I am curious, because it us up to Midland Funding to have evidence which includes the original contract with the credit card company with my original signature.  Also, they need to show evidence in buying the debt that say I owe which includes amounts, type and date and show each purchase that was made.  I do not and never had a binding contract with Midland Funding, so therefore I owe them nothing.  Also, Midland funding has reported negative on my credit report, so I can sue them correct?  That is fraud because they haven't proven anything. 

[Texasgirl2017]

50 minutes ago, Texasgirl2017 said:

I read the rules for civil procedure and it states that I need to request discovery in writing to the courts and submit, the judge has to approve it then I can move forward.  Can you give me an example of how and what to say in my request for discovery?  I would really appreciate that.  I will submit Monday morning.  Thank you so much.  I noticed in the rules that certain things do not apply which would be the evidence lacking.

 

[texasrocker]

1 hour ago, Texasgirl2017 said:

I will call jp court on Monday and see how I go to ask if I can ask for Discovery in my case.  Why would sending a request for production not be good?  I am curious, because it us up to Midland Funding to have evidence which includes the original contract with the credit card company with my original signature.  Also, they need to show evidence in buying the debt that say I owe which includes amounts, type and date and show each purchase that was made.  I do not and never had a binding contract with Midland Funding, so therefore I owe them nothing.  Also, Midland funding has reported negative on my credit report, so I can sue them correct?  That is fraud because they haven't proven anything. 

Once you have the court's approval you can and should indeed send request for production, admissions and interrogatories.  I was just saying don't send the items that you listed. They are not appropriate for a credit card collections case and doing so will result in making a fool of yourself before the court.  

MIdland is claiming to have purchased a bulk of charged-off accounts that includes one of yours. It does not matter to the court that you have no signed contract with them or if they do not have itemized details of each transaction.  

Reporting a negative on your credit report is not "fraud because they have not proven anything" and you can sue them but you will never win based on only that.

1 hour ago, Texasgirl2017 said:

 

 

27 minutes ago, Texasgirl2017 said:

 

I read the rules for civil procedure and it states that I need to request discovery in writing to the courts and submit, the judge has to approve it then I can move forward.  Can you give me an example of how and what to say in my request for discovery?  I would really appreciate that.  I will submit Monday morning.  Thank you so much.  I noticed in the rules that certain things do not apply which would be the evidence lacking.

MOTION SEEKING COURT'S PERMISSION TO CONDUCT DISCOVERY

Comes now, Defendant ______________ and files her Motion to request permission from the honorable Court to begin Level 1 discovery pursuant to Texas Rules of Civil Procedure Rule 190.2 and Rule 500.9

Defendant hereby asks to send Plaintiff Request for Disclosure (pursuant to TRCP Rule 194), request for admissions, production of documents, and interrogatories relative to how Plaintiff intends to prove up the assignment of the alleged debt they claim to own which is the subject of the lawsuit.  Defendant asserts that Plaintiff lacks standing to bring forth this lawsuit; therefore discovery is reasonable and necessary in order to develop her defense and to minimize taking up the Court's valuable time.

 

PRAYER

Defendant prays that the honorable Court grant her Motion For Permission To Conduct Discovery and grant Defendant any other relief that she is entitled to.

[Clydesmom]

3 hours ago, Texasgirl2017 said:

Why would sending a request for production not be good?

Discovery itself IS good.  What you are proposing to send is BAD.  The information you are seeking is not required to prove the case and nothing more than a snipe hunt and the court knows it.

3 hours ago, Texasgirl2017 said:

I am curious, because it us up to Midland Funding to have evidence which includes the original contract with the credit card company with my original signature. 

The court knows there is no contract or original signature in a credit card case.  Waste of time.

3 hours ago, Texasgirl2017 said:

Also, they need to show evidence in buying the debt that say I owe which includes amounts, type and date and show each purchase that was made. 

Again, NO.  They do not need to show every purchase.  Unless you are claiming fraud and identity theft each individual purchase is now moot.  You have 6 months to dispute a transaction and once that time frame expires they are presumed to be accurate.

3 hours ago, Texasgirl2017 said:

I do not and never had a binding contract with Midland Funding, so therefore I owe them nothing.

Oh but were that true.  Under basic contract law when Midland bought your account they bought ALL the rights and responsibilities as well as liabilities of the original creditor.  Which means they can sue you to collect on the balance you owed as they are now the creditor.

3 hours ago, Texasgirl2017 said:

Also, Midland funding has reported negative on my credit report, so I can sue them correct?  That is fraud because they haven't proven anything.

NO.  It isn't fraud to report your debt.  So far based on everything you have posted you are in over your head.  I highly recommend you get a free consult from a good Consumer Attorneybecause you are going to need help beyond what we can do here.

[Goody_Ouchless]

The responses to the idiocy in the above post should be a sticky. Not blaming OP, because we all start somewhere, but this a$s information needs to be pulled like a weed.

 

[BV80]

5 hours ago, Texasgirl2017 said:

I will call jp court on Monday and see how I go to ask if I can ask for Discovery in my case.  Why would sending a request for production not be good?  I am curious, because it us up to Midland Funding to have evidence which includes the original contract with the credit card company with my original signature.  Also, they need to show evidence in buying the debt that say I owe which includes amounts, type and date and show each purchase that was made.  I do not and never had a binding contract with Midland Funding, so therefore I owe them nothing.  Also, Midland funding has reported negative on my credit report, so I can sue them correct?  That is fraud because they haven't proven anything. 

Where did you get the above information?  Did you read it somewhere?

Along with what @Clydesmomstated in regard to the claim that you never had a contract with Midland, you need to read your credit card agreement.  It will state that the OC can sell/assign its rights to another party.  When you used the card, you agreed to that term.  As a result, you agreed that whoever buys the account had the same rights as the OC which means you have a contract with the buyer.