Please help me New Yorker being sued by MIdland Funding

[Nikole]

Hello, My name is Nicole and I have been sued. My first thought was to do nothing but as I began to research options I came across this site and actually found hope.  It has been so helpful to read so many people stories, and the outpouring of help and support without judgment.  Thanks in advance for any help. 

Well here I go I received a summons in the mail along with what looks like a document from the court notifying me I have been sued.  The two letters are from the same sender according to the Pitney Bowes postage. One document shows a filed stamp dated Feb 07 2018, The Pitney Bowes stamp on one letter has a date of Feb 15, 2018 and a postal stamp dated Feb 20th.  The other letter has no Pitney Bowes date stamped or postal date stamp. 

I was never served no one rang my bell I work from home so I am home all the time.  I would have answered the door honestly how would I know if someone rang my bell they wanted to serve me. So I have not avoided anyone.  I filled out the list of question I found on this site I hope this helps someone to help me.  Thank you.

 

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

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.)         

                                                                 Pressler and Pressler LLP

3. How much are you being sued for?      $5,021.62

4. Who is the original creditor? (if not the Plaintiff)   Citibank, NA Sears Mastercard

5. How do you know you are being sued? (You were served, right?) I received two letters in the mail one says compliant the other looks like it is a letter sent from the courts.  Both letters are from the same sender the Pitney Bowes postage is the same.

6. How were you served? (Mail, In person, Notice on door) I do not believe they tried to serve me I work from home and no one rang my bell, I would have answered.  I show that they filed the summons on 2-7-2018.  I received both documents at the same time 2-26-2018 it is possible it was in my mail but I didn’t check until Monday morning.  However, according to the postal date stamp the letter with the summons has a Pitney Bowes time stamp of 2-15-2018 but the postal stamp says 2-20.  I believe they sat on this a few days before mailing.  The letter that appears to have come from the court has no postal time stamp and the Pitney Bowes postage does not show a date.

7. Was the service legal as required by your state? According to New York law they were suppose to make 3 attempts before using an alternative method.  I do not think they tried and there is nothing in the letters I received that shows they tried.

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 received numerous letters but never responded )o:

9. What state and county do you live in? New York, Kings county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) The document says 12-14-2015, I honestly have no clue.

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

I honestly do not know I don’t even remember opening this card.  I did have a sear card when I brought a refrigerator, stove and dishwasher but I paid that off years ago.  I haven’t gotten anything else from sears.  I never closed the card I just never used it.  A few years back my personal info was stolen and a few credit card, bank account and utilities were opened in my name. Someone even changed my address to my drivers license and had my driver’s license sent to a different location.  I fought with those accounts for years in most cases I was told it is me and the CC companies would not listen.  I submitted my police report and they listened but the accounts would continue to appear on my credit and collection agencies would continue to try to collect on those accounts.  I would have to start all over after a few times the creditors and collection agencies began to tell me my attempts were frivolous.  I then lost my job and the accounts I truly had become delinquent.  Creditors were coming left and right. I could not handle it and just stopped answering the phone or opening the mail.  With that being said I do not know if this is from the fraud or from me.   Sorry for the rant I feel so defeated and ashamed but I know I have to fight, so hear my truth.

12. What is the SOL on the debt? To find out: I believe the statue in New York is 6 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  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 went online and I see that a civil suit has been filed I do not see a status.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I am sure I have but am unsure of this specific debt they did not send anything in the letters only the last 4 of the acct number.  I have had the bureaus remove several accounts but they put them back on and sometimes with different account numbers.  This account is currently not on my report.

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'). I have disputed debts with everyone but not sure of this account, it is possible.  Honestly I don’t know I have never responded to this law firm.

16. How long do you have to respond to the suit? A (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 B. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I did not receive a questionnaire

A. I believe I would have 30 from the filed date since I was not personally served.  The file date is 2-7-18. They held the documents hostage until the 20^th according to the postal stamp so I do not have much time. 30 days would be 3-9-2018.

B. I received a two page compliant, this is the title

                                                FIRST CAUSE OF ACTION

1.     Plaintiff, Midland Funding LLC, is a limited liability company formed under the laws of the state of Delaware and having taken assignment of is owner of Citibank NA (sears mastercard) account ending in XXXXXXXXX0618 and is a debt collector licensed by New York City Department of Consumer Affairs license No. 1312658 and is authorized to do business in the state of New York.

2.     Nicole A. resides within the jurisdictional limits of this court.

3.     Plaintiff alleges that Nicole A, whose socialsecurity number ends in 339, is the responsible person for this account.

4.     Nicole A. Failed to repay the balance owed on the account, which is in default.

5.     The account was assigned from the original creditor Citibank NA (sears mastercard) to Midland Funding LLc, the present assignee.

6.     The cause of action asserted herein accrued on or about December 14, 2015, the governing law being that state of South Dakota.

7.     The date of last payment is on or about December 14, 2015.

8.     Upon information and belief, the statute of limitations for the cause of action asserted herein is 6 years and therefore has not expired.

9.     There is now and owing the plaintiff, as the assignee of the account Nicole A, the sum of $5.021.62.

WHEREFORE, Plaintiff demands judgment against Nicole A. for the sum of $5,021.62 plus cost and disbursements of this action and for such further and other relief as the court deems just and proper.

                                                                        By: S/Ian Z. Winograd Esq.

 

 

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  They did not send anything else

[Goody_Ouchless]

Welcome - you found the right place.

Others with more experience will answer and discuss using "Arbitration" to defend this case.

I checked NY rules and Sears/Citibank Agreement, and following appears to be true. Card does have a small claims exemption to arbitration, but NY Small Claims is limited to 5K (3K in some areas). Arbitration is only through AAA. Creditor will only cover debtor's fees per AAA rules (they will pay fees for any arbitration other than debt collection.) This will all make more sense as you learn more.

Some folks will tell you that it's "easy" to win in court in NY. I would disagree, since NY State was extremely aggressive in investigating Midland's debt collection practices and applying sanctions. It seems that when a jurisdiction looks closely at the debt collection industry, debt buyers respond by providing evidence designed to comply with any such concerns.

 

[Brotherskeeper]

@Nikole Welcome. Hopefully, @usctrojanalum will weigh in soon on your complicated situation. Because this is a Citibank issued Sears card, it's important to know if you are in the small claims division of your court system. 

[Nikole]

Thank you both for time, I feel like a two year old I am so confused and very intimidated.  I see you both are looking to know if this is small claims.  I am not sure how to tell, but this is what I see on the document.  I am in civil court I believe small claims might be a different court, but I am not sure of the names of the different courts.  $5,021.62 looks like 21.62 has made the difference. I hope this helps

[Brotherskeeper]

@Nikole This is baptism by fire. You need to read up to understand what steps you need to take immediately, and by what deadline, in order to avoid a default judgment against you and to preserve your rights. If you've received a summons and complaint, you will need to file an answer (or a motion in lieu of an answer) per your court rules of civil procedure. Helpful links for pro se defendants may be found here:  https://www.neweconomynyc.org/the-basics-of-defending-creditor-lawsuits/

Click on this link below to learn about using the arbitration clause in cardmember agreements:

 

@Goody_Ouchless Do you know if Midland still refuses to comply with the AAA policies in 2018?

http://www.nclc.org/images/pdf2/pubs/MidlandDeniedAAARedacted.pdf

"Prior to the filing of this arbitration, the business failed to comply with the AAA's policies regarding consumer claims. Accordingly, we must decline to administer this claim and any other claims between Midland Funding, LLC and its consumers. These policies can be found on our web site, www.adr.org, in the Consumer Due Process Protocol (“Protocol”) and the Consumer Arbitration Rules.

On a previously-filed consumer matter, this business did not timely submit its share of the filing fees and/or failed to waive a provision in its consumer contract that the AAA identified as a material and substantial deviation from the Protocol. The AAA sent correspondence informing the business that we may decline to administer consumer arbitrations involving this business and requested that the business remove the AAA from its consumer arbitration agreements so that there would be no confusion to the public.

In addition, Midland Funding, LLC has not complied with our request to register its consumer clause on the AAA's Consumer Clause Registry (www.adr.org/consumerclauseregistry). Please note that submission of the expedited review fee on any particular matter does not satisfy the separate obligation to register the consumer clause.

Accordingly, we have administratively closed our file and will refund any payment received by the filing party. According to R-1(d) of the Consumer Arbitration Rules, should the AAA decline to administer an arbitration, either party may choose to submit its dispute to the appropriate court for resolution."

[Nikole]

I went to the link and read the letter, I have no clue what this means or how to find this information out.  I am going to the website to do some reading to see how this can help me. I am going to need a lot of alcohol to get through this.  

One question before I end what is an arbitration and AAA policies and what does that mean for me and my situation?

[Brotherskeeper]

6 minutes ago, Nikole said:

One question before I end what is an arbitration and AAA policies and what does that mean for me and my situation?

Read fisthardcheese's overview and strategy of arbitration in the link above. The AAA letter is not something to focus on right now. I know you have no idea if this Sears card was opened by you or fraudulently opened by someone else. The complaint alleges that the last payment on the account was on or about Dec. 14, 2015. Can you check your bank records to see if you made this payment?

[Brotherskeeper]

14 minutes ago, Nikole said:

I am going to need a lot of alcohol to get through this. 

If only that helped. 

[Nikole]

I didn't think I could read that fast I now understand Arbitration and the AAA policies.  Like you said not needed now but if it does come into play I will check to see how Midland used this option or did not.  The link to that website is spot on, such an easy and straight forward read.  I have been some other places and wow.

You are very clever about the bank account yup clear as day.  SOOOOOoooooo now that I am sure this has nothing to do with the ID theft I don't need to make that apart of my argument.  I saw a response from from the court house but for some reason I do not want to use it.  I have found several examples of how to put one together yourself, I am not sure which one can you advise me on what my answer should look like.  I guess I'm feeling a tad bit assured now that I have some help.  I want to represent myself in the best light possible not a generic one.  I hope you understand and can point me in the right direction so far you are an ACE. 

If that sip did help, this would be one silly place. I will hold the bottle until the end lets see if I get to celebrate with a drink or sulk with one.  

[Nikole]

Sorry response form/

[Guest usctrojanalum]

Hey Nicole,

Service by mail only is permissible in small claims cases.  And Courts do send letters in consumer debt cases to let you know that a summons and complaint has been filed.  But >5k puts you out of small claims jurisdiction. 

What Court is the case pending in? 

[Nikole]

Thank you usctrojanalum sorry for the delayed response I do not know how to tell what court I am in. Can you please tell me where to look? My plan is to go to the court today if not definitely tomorrow and I plan to submit my response.    

[Brotherskeeper]

6 hours ago, Nikole said:

Thank you usctrojanalum sorry for the delayed response I do not know how to tell what court I am in. Can you please tell me where to look? My plan is to go to the court today if not definitely tomorrow and I plan to submit my response.    

@Nikole You need to type @ before usctrojanalum, @usctrojanalum ,   so that s/he gets notified. It would be a good idea for you to post a draft of your answer with personal info redacted before you submit it. 

 

[Nikole]

Thank you @usctrojanalumsorry for the delayed response I do not know how to tell what court I am in. Can you please tell me where to look? My plan is to go to the court today if not definitely tomorrow and I plan to submit my response. 

Thank you @Brotherskeeper I saw how that worked one I started typing.  Life saver once again. 

[Guest usctrojanalum]

Typically, the court is on the top left hand portion of the caption.  For example it would say City Court of the City of Mount Vernon, Westchester County or it would say Civil Court of the City of New York Queens County, Etc. etc. 

[Nikole]

I hope I am submitting this where it needs to be.  This is an update on my case.  

HAHAHAHAHAHAH!!!!!!!!!!!!   I was granted my arbitration. This forum is amazing, everything I learned I learned from here I thank you all.

This is what happened, I filed my answer, with my counter claim.  When I went to file my answer I was told I didn't need to do all of this they have a one page document to answer a summons.  I told the lady yes I know, but if I do that I might void any opportunity to present other arguments to a judge later.  When I filed my motion I was told I did not do it correctly but every where I went someone helped me.  The judge scratched out my wording and told me what to write to ensure my motion was proper.  I received a 4-4-2018 court date which was today.

While I waited  for the court date I received a letter from the plaintiff stating I failed to respond and I am now in default.  It took me by surprise but I quickly realized they wanted me to call to make a settlement.  I never called, I also received a stack of bills with a letter stating my motion has been denied because I requested the motion based off the fact that they did not provide any supporting documents.  I ignored it, my motion was based off the agreement and I found out if it didn't go through the court it didn't happen the judge told me that. That letter also encouraged me to call and work out a settlement.  

Today I walked into the court room and my stomach started to turn I was so scared.  I had my notes and started to study them like I was in school to be prepared for anything they might throw my way.  They did the calendar call and It seemed like everyone paired up, attorneys found the defendants and started having conversation.  The plaintiff in my case never even turned around so I knew he didn't know who I was, he just knew I was there. 

I just sat and waited when they called me I dropped everything my umbrella, phone, bag, my papers. The whole court room had eyes on me, I said pretty loud "It was a frog on my lap", it took a few seconds and everyone just started laughing even the judge. Why did I say that no clue when I am nervous I make jokes. 

I am now in front of the judge she starts to look through what I submitted and asked where is my attorney.  I said I am representing myself she said o yes I see wait you did this, I proudly said yes I did.  She had a smile an nodded like good.  She turned to the plaintiffs attorney and asked what do you have.  He started by saying we had some trouble with this because the agreement says that there is no litigation in arbitration.  I sternly said that is absolutely incorrect.  The judge said it does not matter if it is true or not you did not answer the motion so the motion is granted and this case is dismissed with prejudice.  The attorney never even looked at me, never made eye contact.  I got my docs with a big smile on my face thanked everyone and walked out. 

On my way out to did stop to speak with one of the legal aid attorneys.  I broke down what happened he asked why did I file for arbitration I said I did some research and felt it was my best option. He said you could lose in arbitration I said it is not worth it for them my debt is not that high they have to pay, he seemed indifferent.It seems his strategy is to force them into a trial by dragging things out, I think that could work for larger debt. At least I know where I can go to get legal help, he is there every Thursday. 

His advise now is to just do nothing, he said it is on them to move forward.  Any advise on this advise. 

Again, I want to thank you all for your help.     

I am going to have that drink now!!!!!!!

 

[nobk4me]

Excellent news.  Dismissed with prejudice.  So it's over, you won.  The judge did the right thing:  if you file a motion and the other side doesn't answer, you should win.  Good job!

[Guest usctrojanalum]

Good job, those legal aid attorneys are of the belief that if the matter goes to arbitration, the consumer loses like 99% of the time.  He is probably right--but the strategy is that when the balance is small it will cost the creditor too much money to pursue arbitration, and therefore, it's better to force their hand. The trial strategy is likely not a terrible one either. 

 

[Brotherskeeper]

@Nikole I'm so happy for you! You did a great job after a few twists and turns! 

[fisthardcheese]

Wow I am very surprised the judge dismissed WITH prejudice just based on your MTC.  That is rare.  This judge must have a dislike for either that attorney or the creditor.  Very nice work doing this on your own!  And even more impressive that you completely ignored some blatant lies (probably very illegal lies) in those letters they sent you and just focused on the court date like you should.

Great work!!

Also the legal aid attorney's scoff at arbitration is no shocker to us.  Too many attorneys don't understand the consumer rules of JAMS and AAA.

[Nikole]

Sorry for the delayed thank you, @fisthardcheese @Brotherskeeper, @usctrojanalum, @nobk4me, I appreciate all your acknowledgements. I agree it did seem like she was annoyed with the lawyer @nobk4me,  I had no idea that her dismissing it with prejudice was a big deal I thought that is how it was done.  The day I was in court they were having trouble with their copy machine and she asked me to take a pic of her ruling.  I said is there anyway I could get a physical copy she asked the man next to her he said yes.  As I stood there he said I understand wanting your copy you did good., I needed what she said in writing.  With everything I learned from this site that is the one outcome that you want to hear when I heard her say it, it took everything in me to keep me from doing a happy dance.

As for that lawyer @usctrojanalum , @fisthardcheeseI completely agree, I don't think I would take a chance if the debt was over $10K.  Mine was $5K fingers crossed this logic works it makes perfect sense.  

I received an email from AAA giving midland a deadline of the 18th to make a payment in order to move forward.  I am not going to touch it, not one call or even an inquiry nothing.  I have not heard anything from midland fingers crossed until the 18th has come and gone, this will truly be over.

@Brotherskeeper, the twist and turns is right.  The help I received here is invaluable.  You all deserve to sleep good knowing you help people and to be specific you helped me.  Sleep well.