Being Sued By Midland in Georgia

[Boo313]

Hi I am being sued by Midland through an attorney in Georgia. I never received an initial letter. I was served March 1, 2018 and was totally surprised because I never received anything stating that I owed Midland. I called the court and they stated that they filed but hadn't submitted the server confirmation yet. I have until the end of March to reply. I did have an account with the bank but it was written off. 3 different DC owned the alleged account before Midland. They sent me the attached bill of sales with certificate of conformity and 3 copies of old credit card statements without my name and a fact sheet with my name address total due. The bill of sales do not have my name on them. They show that they bought a bundle of accounts.  I need help, please! I downloaded a copy of the answer form from the court. Should I answer with deny and/or should I motion to dismiss for a lack of information and the fact that there was no initial communication? I'm a 57 year old nervous Reck! PLEASE SOMEBODY HELP ME! 

1. Who is the named plaintiff in the suit? Midland Funding LLC assessor in interest to Credit One Bank NA

2. What is the name of the law firm handling the suit? Green and Cooper LLP

3. How much are you being sued for? OVER ONE THOUSAND

4. Who is the original creditor? Credit One Bank N.A.

5. How do you know you are being sued? I was served.

6. How were you served? In person. My husband received it.

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I never knew of Midland until the lawsuit.  I haven't responded yet to the lawsuit. I have until March 30, 2018.

9. What state and county do you live in? Georgia Gwinnett County

10. When is the last time you paid on this account? 2016

11. When did you open the account? 2012

12. What is the SOL on the debt? 4 years

13. What is the status of your case? claim filed Feb 8, 2018 

14. Have you disputed the debt with the credit bureaus. No

15. Did you request debt validation before the suit was filed? No, because I never received anything regarding this debt until March 1, 2018.

16. How long do you have to respond to the suit? March 31. 

17. What evidence did they send with the summons? Affidavit stating that they bought a bundle of accounts. They attached 2 bill statements: One for 2016 and One for 2017. They also had a field data attached. 

The suit just claimed the defendant is indebted to the Plaintiff as follows: Owe the principal amount $1,xxx.xx, subject to a credit for payment in the amount of $00, plus pre-judgement interest at the rate of 7% from charge-off date through judgment date, plus post-judgment interest at the statutory rate and all costs (Court costs subject to Court approval) of this action. Midland Funding LLC purchased this account. The original credit grantor is Credit One Bank, N.A. the original account number is xxxxxxx6969. All exhibits attached hereto support the foregoing allegations and by reference are made part of this Statement of Claim. That said claim is in the amount of: XXXXXX principal was left blank interest, plus $117.00 cost to date and future cost of this suit. State of Georgia. It was sworn Jan 22 2018 Notice and Summons was stamped Feb 19, 2018. It said Plaintiff made a claim and is requesting judgment against me and that I needed to present an answer.

 

CLAIM STATED.pdf

Edited March 12, 2018 by Boo313
needed to add document

[NormInGeorgia]

First, don't panic.  You will be okay.     You live in Gwinnett County and you were served in Gwinnett County, correct?  And this is case was filed in Magistrate Court, correct?

 

[NormInGeorgia]

Fill out the Answer document and DENY all claims.      Make 3 copies of it and then sign each copy.  Take them to the court clerk office at the court house before the DUE DATE.  Ask them to stamp the 3 copies.  They will keep one and you keep the other two for your records.   The court will send you a letter giving a "trial date" about 30 days out.    While you are waiting for the trial date, you will start working on your Motion To Compel Arbitration (MTC).  

I found this 2012 card agreement that might apply to your account.  Please take a look at it and see if it might be a match for the type of card you had.  Then we can start talking about exactly how to prepare a MTC.

 http://www.cardmemberagreements.org/wp-content/uploads/2012/08/2012-Credit-One-Bank-Agreement-with-JAMS.pdf

 

[Boo313]

Yes! I'm just seeing this response. Yes lives in Gwinnett County.  I was Wondering if I should file a motion to dismiss as an answer? The Bank One App is the one for 24.65%

[Boo313]

The attachment is the agreement.

creditonebankcreditcardagreements.pdf

[NormInGeorgia]

There is no such thing as a motion to dismiss.  You MUST file an "Answer" document with the court (in which you deny all the claims) and you MUST show up on the trial date that they send to you. 

[NormInGeorgia]

Is this the Answer form you downloaded from the County Court website?

mag 10-13 answer counterclaim of defendant (1).pdf

[NormInGeorgia]

 

When you fill in the form, you check box #3 to deny the plaintiff's claims and then put in some wording similar to this:

I have no such alleged debt or alleged account with the plaintiff.  Plaintiff has no legal standing to make such claims since they have provided no valid evidence that they are the rightful owner or rightful assignee of any alleged debt or account. 

Here is a slight change to what I stated in my previous post:     Make 3 copies of your Answer document.  Take them to the court clerk office at the Gwinnett court before the DUE DATE.   Go to the Magistrate court clerk window.    Tell the clerk you have 3 copies of the Answer for them to stamp.     SIGN ALL THREE COPIES WHILE STANDING IN FRONT OF THE CLERK.  They will keep one and you keep the other two for your records.   The court will send you a letter giving you a "trial date" about 30 days out.  You must show up for this trial date. 

If you do not show up at the trial date, the plaintiff will win a "Default Judgement" against you.  That is the strategy of Junk Debt Buyers.  They know 99% of defendants will not submit an Answer to the bogus claims and will not show up for the court date to defend their rights.    

 

[Clydesmom]

On 3/7/2018 at 8:32 AM, Boo313 said:

12. What is the SOL on the debt? 4 years

SOL on credit card debt in GA is 6 years not 4.  If you defaulted in 2016 they filed timely in either case.

On 3/8/2018 at 5:52 AM, NormInGeorgia said:

I found this 2012 card agreement that might apply to your account.

The OP defaulted in 2016.  The agreement that would apply would either be 2015 or 2016 which ever was most current prior to default not the one when the card was opened.

On 3/8/2018 at 5:52 AM, NormInGeorgia said:

Then we can start talking about exactly how to prepare a MTC.

Credit One has a carve out for small claims cases and Magistrate Court would cover that.  Arbitration won't be an option.  The OP is going to have to defend this or settle.

[NormInGeorgia]

 

The 2012 agreement and later agreements (2016, 2017) all appear to have the same type of wording, so it does not change anything really except the OP would want to print out the more current version of the agreement to take to court.

 

I would like to hear from @fisthardcheese about whether or not MTC is still an option in this case.    

 

My theory is the demand for arbitration it is not about the $1,881.91.  In fact, @fisthardcheese always suggests to not even mention it if you file an arbitration claim with AAA or JAMS.   The demand for arbitration and MTC is used as a tool to just get a STAY of the court proceedings.   The topic of an arbitration claim should be the violation of federal and state law by the JDB and enforceability of the Card Agreement itself.  In my opinion, the fact that a JDB brings a lawsuit against you with no valid evidence of standing is enough to justify a demand for arbitration. I have highlighted the section of the small claims carve out below (from the 2017 version) I am using as justification:

 

Quote

Claims Not Covered:
 • Claims are not subject to arbitration if they are filed by you or us in a small claims court or your state’s equivalent court, so long as the matter remains in such court
and advances only an individual claim for relief. Also, disputes about the validity, enforceability, coverage or scope of this Arbitration Agreement or any part thereof are
not subject to arbitration and are for a court to decide. But disputes about the application, enforceability or interpretation of the Card Agreement as a whole are subject
to arbitration and are for the arbitrator to decide.

 

My view is that a JDB cannot apply or enforce the Card Agreement as a whole because they are NOT a party to the Card Agreement (since they cannot prove ownership of the account) and have no standing to bring a lawsuit against you in court at all.  Enforcement of the Card Agreement itself cannot be decided by a judge.  It must be decided by an arbitrator.  Again, this is just my theory, I do not know if it is correct.  There could be case law that completely blows my theory out of the water but I just don't know about it yet.

 

However, the OP would still have a good case even if MTC is rejected by the judge.  It is just a more uphill battle and requires more preparation before the trial date to get mentally prepared and have statute information and case law on hand and ready to quote to the judge if necessary.   As you know, the worst case scenario in GA Magistrate court is, if you lose, you can appeal the case de novo.

 

[NormInGeorgia]

Begin Rant:

JDBs are simply scammers who abuse the public court system (with the help of clueless or corrupt judges), bully and intimidate unwitting consumers, and take money that is not rightfully theirs.  Sometimes we can fight back against this abuse with the truth that the scammers must have real evidence they own an account if they want to collect on that account.  When we are silent it allows this sick disgusting JDB argument to win : "You owe me money just because I say you do."   No one should be allowed to get away with that nonsense.

End Rant.

[Clydesmom]

4 hours ago, NormInGeorgia said:

My view is that a JDB cannot apply or enforce the Card Agreement as a whole because they are NOT a party to the Card Agreement (since they cannot prove ownership of the account) and have no standing to bring a lawsuit against you in court at all. 

UGH.  Your opinion is completely wrong and not even binding on the court.  Not only that it is outdated.   Basic contract law states when an assignee buys out the account they get ALL the rights and responsibilities.  Not only does that include being able to sue to collect but having to arbitrate if the consumer demands it.  The days of the JDB buying accounts based on a spreadsheet alone are LONG over.  In the digital era they get more than enough statements and documents to prove the debt and standing.  There is plenty of case law backing up all of this which is WAY more compelling than your opinion.

5 hours ago, NormInGeorgia said:

Enforcement of the Card Agreement itself cannot be decided by a judge.  It must be decided by an arbitrator.  Again, this is just my theory, I do not know if it is correct.  There could be case law that completely blows my theory out of the water but I just don't know about it yet.

Get on Google Scholar.  There is plenty to educate yourself with that you are very wrong on this.

4 hours ago, NormInGeorgia said:

JDBs are simply scammers who abuse the public court system (with the help of clueless or corrupt judges), bully and intimidate unwitting consumers, and take money that is not rightfully theirs. 

Horse manure.  10 years ago that was true.  They bought pools of accounts on a spreadsheet and NO proof they bought anything let alone supporting documents that there was even an account.  Today:  not so much. You cannot really believe that PRA or Midland simply has minions surfing dumpsters looking for account statements then duns the consumer or files suit.

It is an industry based on consumer default.  If consumers didn't default (regardless of reason) do you think they would be in business?  The reality is if creditors did not have this option to offset the bottom line when consumers default virtually no one would get credit.  

[BV80]

3 hours ago, NormInGeorgia said:

My view is that a JDB cannot apply or enforce the Card Agreement as a whole because they are NOT a party to the Card Agreement (since they cannot prove ownership of the account) and have no standing to bring a lawsuit against you in court at all.

I must take issue with some of your statements.  Consider it to be my rant.

The Consumer Financial Protection Bureau disagrees with your claim that JDBs cannot prove ownership of a debt.  But, first, let's deal with the issue of a cardmember agreement and arbitration.

The court is required to determine whether or not a valid agreement to arbitrate exists. 

"Whether there is a valid agreement to arbitrate is generally governed by state law principles of contract formation, and is appropriate for determination by the court."  A contract is valid only if the parties assented to the contract terms. Triad Health Mgmt. of Ga., III v. Johnson, 298 Ga. App. 204, 206 (2) (679 SE2d 785) (2009).

In order to determine the existence of a valid agreement to arbitrate, the applicable contract must contain an arbitration provision, AND one of the parties in the dispute must be a party to the contract.   

Although not expressly so limited, section 3 assumes and the case law holds that the movant for a stay, in order to be entitled to a stay under the arbitration act, must be a party to the agreement to arbitrate, as must be the person sought to be stayed. Citrus Marketing Board v. J. Lauritzen A/S, 943 F.2d 220, 224-25 (2d Cir.1991); Nederlandse Erts-Tankersmaatschappij, N.V. v. Isbrandtsen Co., 339 F.2d 440, 441 (2d Cir. 1964); In re Talbott Big Foot, Inc., 887 F.2d 611, 614 (5th Cir.1989); ATSA of California, Inc. v. Continental Ins. Co., 702 F.2d 172, 176 (9th Cir.1983).

Someone has to be a party to the contract.  How many times have posters been told to deny having opened a credit card account?  In the event one makes that denial, he is stating he is not a party to the contract. Therefore, by submitting a MTC arbitration, he is admitting that the JDB plaintiff  IS a party to the contract.

 

4 hours ago, NormInGeorgia said:

JDBs are simply scammers who abuse the public court system (with the help of clueless or corrupt judges), bully and intimidate unwitting consumers, and take money that is not rightfully theirs.  Sometimes we can fight back against this abuse with the truth that the scammers must have real evidence they own an account if they want to collect on that account.  When we are silent it allows this sick disgusting JDB argument to win : "You owe me money just because I say you do."   No one should be allowed to get away with that nonsense.

"Scam" is "fraud".  By invoking that term, some unsuspecting posters who read your post could assume they don't have to answer a summons and complaint from a JDB. 

"Fraud" means "intent".  Scams are an intent to defraud.  How many courts, if any, have ruled that a JDB committed fraud?   There have been collection agencies that have been shut down because they were not legitimate collection agencies, and they were found to have committed fraud.  But where or when have well-known JDBs such as Midland, Portfolio, Cavalry, etc. been prosecuted for fraud?

Courts across this country have found that JDBs had standing to sue.  Are you saying the JDB committed fraud in every one of those instances?   Are you saying that EVERY judge was either clueless or corrupt?  

Are you saying that bills of sale and affidavits from OCs were forged?  That credit card statements were found in dumpsters or trash cans?  That JDBs never legally purchase defaulted accounts?

When the CFPB sued Midland and Portfolio for violations of the FDCPA, it did not mention "scam" or "fraud".  It did not state that those companies could not prove ownership of debts.  In fact, it stated the opposite.

I've been on this site for 10 years.  I believe I've shown that I'm not a debt collector.  Years ago, I thought as you do, but I've learned a few things. 

I learned that:

1.  cardmember agreements contain a statement that a credit card bank can sell an account;

2,  by using the card, I agreed that the creditor could sell the debt; 

3.  the purchaser has the rights of the original creditor; and

4.  the purchaser is owed the money.

Yes, in the event arbitration is not an option, the JDB must prove ownership of the account.  But, in my opinion, it's irresponsible to state that JDBs "cannot prove ownership of the account" and that judges are "clueless or corrupt".

 

[Boo313]

On ‎3‎/‎11‎/‎2018 at 1:40 PM, NormInGeorgia said:

Is this the Answer form you downloaded from the County Court website?

mag 10-13 answer counterclaim of defendant (1).pdf

YES! I DON'T KNOW WHY I'M NOT GETTING NOTIFICATIONS FROM MY RESPONSES.... ATTACHED IS HOW I RESPONDED.

ATTAACHED IS HOW I RESPONDED..

 

ANSWER2.pdf

ANSWER 1.pdf

Edited March 12, 2018 by Boo313
HAD PERSONAL INFO INCLUDED

[Boo313]

On ‎3‎/‎11‎/‎2018 at 1:40 PM, NormInGeorgia said:

Is this the Answer form you downloaded from the County Court website?

mag 10-13 answer counterclaim of defendant (1).pdf

YES! I DON'T KNOW WHY I'M NOT GETTING NOTIFICATIONS FROM MY RESPONSES.... ATTACHED IS HOW I RESPONDED.

ANSWER 1.pdf

ANSWER2.pdf

[Boo313]

@BV80 @Clydesmom I haven't submitted this answer yet. I wanted to know if it's correct or should I just use the courts answer sheet.

 

ANSWER 1.pdf

ANSWER2.pdf

[Clydesmom]

34 minutes ago, Boo313 said:

@BV80 @Clydesmom I haven't submitted this answer yet. I wanted to know if it's correct or should I just use the courts answer sheet.

AYANNA DEBT CASE.doc

DO NOT use this answer.  It is way over the top and not even based on GA law.  You only need the pre-printed court form.  Check "Denied" and let the clerk schedule a trial date.  That won't happen right there usually.  They mail you the date within a week.

[Boo313]

@Clydesmom Thank you so much! question: why are so many posts saying to motion to dismiss instead of answer? Also, they never sent me an initial letter. I didn't know anything about midland until they served me on the 1st of March.\

[Boo313]

@Clydesmom  May I ask, what should I write as my reason why I deny? 

[Clydesmom]

44 minutes ago, Boo313 said:

question: why are so many posts saying to motion to dismiss instead of answer?

Two reasons:  state law in places other than GA allows for it and it is an outdated tactic to defeat the suit.  Magistrate Court does not allow for it.  You answer or they get a default judgment.

45 minutes ago, Boo313 said:

Also, they never sent me an initial letter.

They didn't have to.  Neither GA law or Federal law requires it prior to suing.

46 minutes ago, Boo313 said:

I didn't know anything about midland until they served me on the 1st of March.\

That happens.  It is a new tactic they simply go straight to lawsuit to avoid counter claims of FDCPA violations.

28 minutes ago, Boo313 said:

May I ask, what should I write as my reason why I deny? 

Wrong venue:  Defendant elects private contractual arbitration in JAMS per the card agreement to the account alleged in the complaint.

[Boo313]

To get a better understanding, this is what was served along with Bill of sales between 2 other transfers total of 3, a few affidavits none with an account number and a couple of statements both a year+ apart Plus a printed out Field Sheet.  

CLAIM STATED.pdf

[NormInGeorgia]

4 hours ago, BV80 said:

Yes, in the event arbitration is not an option, the JDB must prove ownership of the account.  But, in my opinion, it's irresponsible to state that JDBs "cannot prove ownership of the account" and that judges are "clueless or corrupt".

 

Well, I definitely stepped in the doodoo because of my choice of words in my rant.

  Scam was too simple a word and I did not intend it to be interpreted as “fraud”.   They do abuse and manipulate the courts in a systematic way and occasionally commit fraudulent acts such as robo-signing and flat out lying to your face and lying to judges.   I’ve experienced that first hand.  I never advocate ignoring a lawsuit.  All JDB lawsuits should be answered and challenged by using the law.  

 I have seen judges whose actions can be described as lazy.  Lazy because they know their decision can be appealed and they don’t want to spend time making a hard decision. Instead, let another court make the decision.   I cannot prove they were clueless or corrupt, but the laziness leaves them open to being called those names.   Again, every lawsuit still needs to be answered and challenged.  Thank goodness for that appeals process.  

As far as proving  account ownership,  I do not see that JDB tactics have changed very much over the years.  Years ago they put a one inch thick stack of account statements in front of me.  It did not prove the account was legally assigned to the JDB.   They put affidavits and spreadsheet print outs in front of me.  It still did not prove the account was legally assigned to the JDB.    In most cases, I won because I stood up to the JDB and their insufficient ownership claims or their procedural mistakes.  I do not think JDB tactics have drastically changed today. Their bread and butter is still just the vast majority of people who do not answer the complaint and end up with a default judgement.    JDBs like easy targets and I was not an easy target. 

[Clydesmom]

4 hours ago, Boo313 said:

To get a better understanding, this is what was served along with Bill of sales between 2 other transfers total of 3, a few affidavits none with an account number and a couple of statements both a year+ apart Plus a printed out Field Sheet.  

CLAIM STATED.pdf

That is a form from the court.  We would need to see redacted (any identifying information removed) copies of ALL documents.  

On 3/7/2018 at 8:32 AM, Boo313 said:

The bill of sales do not have my name on them.

They don't have to and under the GA business records law(s) the court won't be looking for your specific name.

On 3/7/2018 at 8:32 AM, Boo313 said:

They show that they bought a bundle of accounts.

Defaulted accounts are always bought in pools not individually.

Despite @NormInGeorgia's personal useless rant the reality of Gwinnett Magistrate Court is much different.  I have actually been to court IN that county and with those Magistrates.  Most are attorneys.  Some are Judges.  The majority are VERY objective.  It is one of the 3 largest counties in GA and run extremely efficiently.  The rural good old boy network is not common there like the small single Magistrate areas out of the city.  STOP worrying about what papers they do have for the moment and start reading threads on arbitration and start drafting a REALLY good motion to compel arbitration for the trial date.  Check off "DENIED" and file an answer so that you don't get nailed with a default judgment.  

 

[Boo313]

Thank You! @Clydesmom I will file deny. No need for no type of explanation right? I will upload the redacted copies.

Edited March 13, 2018 by Boo313
wanted to add another statement.

[Boo313]

@Clydesmom  First I want to thank you again for assisting me. I truly appreciate it! Attached is what I was served. It came out upside down. IF you right click and click rotate it will turn it for all sheets. Thank you!

 

MIDLAND'S_CLAIM.pdf