Being Sued by Midland Funding in Tennessee

[lovie2000]

Ok I found out I was being sued by Midland Funding by way of lawyer solicitations in the mail back in February. I went on the court website and was able to pull up the information of the filing, filed on Feb 9^th and Issued on Feb 12^th with court date set for March 22^nd. I just received this summons yesterday Mar 10^th. The trade name changed from Midland Funding to Midland Credit Management on my credit file, but Midland Funding is suing me as successor in interest to GE Capital Retail Bank/Walmart. When I disputed the debt with GE Capital Retail Bank/Walmart, they reported account opened in 2011, last payment in Jan 2013 and then a charge off amount of $388 on my credit file as of Aug 2013. Now Midland Funding is trying to collect $596.78.

Midland Funding is not licensed for collections in the state of Tennessee. The status of their license here shows Vol Surrender with an expiration date of Mar 24, 2015. Midland Funding and the law group representing them were also sued here in the state of TN multiple times just last year for different FDCPA violations. The rules here state that I have 30 days to file an answer after receiving the summons, but there is no 30 days with a court date of Mar 22^nd and they just served me on March 10^th.

I plan to answer the summons and go to court. But I need a little guidance on where to start. Any advice would be appreciated.

 

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.) Finkelstein, Kern, Steinberg, & Cunningham, P.C

3. How much are you being sued for? $596.78

4. Who is the original creditor? GE Capital Retail Bank/Walmart

5. How do you know you are being sued? Received summons

6. How were you served? (Mail, in person, Notice on door) Handed to me

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 disputed the debt both with Walmart and then with Midland Funding requested debt validation, verification, etc. Then started to received letters, but did not respond to collection letters.

9. What state and county do you live in? Tennessee, Davidson County

10. When is the last time you paid on this account? Haven’t paid midland funding anything

11. What is the SOL on the debt? 6 years & 4 years for retail installment sales contract or agreement

12. What is the status of your case? Suit served? Motions filed?  Summons served

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

14. Did you request debt validation before the suit was filed? Yes

15. How long do you have to respond to the suit? Rule 12.01: A defendant shall serve an answer within thirty (30) days after the service of the summons and complaint upon him. https://www.tncourts.gov/rules/rules-civil-procedure/1201

 16. What evidence did they send with the summons? An affidavit by someone claiming to be an officer for Midland funding LLC and employed as a Legal Specialist by Midland Credit Management, Inc

[BV80]

26 minutes ago, lovie2000 said:

Midland Funding is not licensed for collections in the state of Tennessee. The status of their license here shows Vol Surrender with an expiration date of Mar 24, 2015.

Here's the TN Code:

62-20-103. Exemptions.

    (a)  This chapter does not apply to:

(9)  Any person that holds or acquires accounts, bills or other forms of indebtedness through purchase, assignment, or otherwise; and only engages in collection activity through the use of a licensed collection agency or an attorney authorized to practice law in this state.

As long as the attorney for Midland is licensed to practice law in TN, Midland is not required to be licensed to collect.  You can find out if the attorney is licensed to practice law in the following link:

http://www.tba.org/member-search

Read the following links about arbitration.

https://www.creditinfocenter.com/community/topic/329407-arbitration-in-the-modern-era/

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

[lovie2000]

below is a list of my answers to the summons I received. All that was attached was the summons and an affidavit from a Delaney young with 8 bullet points of how he/she has knowledge of the account and has seen data files. Showing an account number from the original creditor listed as example xxxx-xxxx-xxxx-1234 ..... I never had an account with ge capital bank walmart ending in the account number they listed as original creditor account they bought.... I am going to file my answer tomorrow with the courts and I would like any help I can get in this matter on how to handle this and some steps if possible

My Answers:

The Defendant states as follows:

1.    In response to paragraph one of the Plaintiff’s complaint, Defendant is without information or knowledge sufficient to admit or deny the allegations contained therein and therefore deny them.

2.    In response to paragraph two, Defendant denies the allegations contained therein.

3.    In response to paragraph three, Defendant is without information or knowledge sufficient to admit or deny the allegations contained therein and therefore deny them.

4.    In response to paragraph four, Defendant denies the allegations contained therein.

5.    In response to paragraph five, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefore deny them.

6.    In response to paragraph six, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefore deny them.

7.    In response to paragraph seven, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefore deny them.

8.    In response to paragraph eight, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefore deny them.

 II. Affirmative Defenses

Defendants other defenses are:

1.    The Plaintiff failed to name the real party in interest per Article 62-20-127(a) of the Tennessee Code.

2.    Defendant was not notified of any assignment of debt that is the subject of the complaint.

3.    Plaintiff’s complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff’s complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

4.    Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), U.S.C. 1692e, 1692f, and 1692g from using false, deceptive, or misleading representation or means with collecting a debt, collecting interest on any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Not validating the debt upon request from the Defendant.

5.    Defendant claims accord and satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits from the Plaintiff.

6.    Plaintiff’s damages are limited to real or actual damages of actual cost paid or exchanged to alleged original creditor for the purported debt, for which Plaintiff failed to reference the original creditor account number in their complaint.

7.    Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

 WHEREFORE, Defendant prays that the court take nothing of plaintiff’s complaint by virtue and dismisses the complaint with prejudice.

[lovie2000]

Then there is just this form

 

http://www.tncourts.gov/sites/default/files/docs/sworn_denial_-_dec_2012.pdf

[Clydesmom]

I so wish you had come here before filing that answer.

14 minutes ago, lovie2000 said:

1.    The Plaintiff failed to name the real party in interest per Article 62-20-127(a) of the Tennessee Code.

2.    Defendant was not notified of any assignment of debt that is the subject of the complaint.

3.    Plaintiff’s complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff’s complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

4.    Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), U.S.C. 1692e, 1692f, and 1692g from using false, deceptive, or misleading representation or means with collecting a debt, collecting interest on any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Not validating the debt upon request from the Defendant.

5.    Defendant claims accord and satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits from the Plaintiff.

6.    Plaintiff’s damages are limited to real or actual damages of actual cost paid or exchanged to alleged original creditor for the purported debt, for which Plaintiff failed to reference the original creditor account number in their complaint.

7.    Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

1. They did name the real party:  Midland.  This isn't going to fly one bit.

2.  Tennessee does not require they notify you of this.  It is not a valid defense.

3.  I don't believe TN requires that they attach any evidence to the complaint.  You must get all that information in discovery.  This is an argument you make at trial.

4.  This isn't going to fly either.  The burden of proof is on  you they misrepresented anything.  Second you said you sent validation and they sent collection letters you ignored.  Regardless of what bad list you demanded for validation if they sent a second letter with the name of the OC, their name and address and the amount you owe they validated.  They also don't have to prove you received it only that they sent it and a copy of a response letter will be sufficient.

5.  This one REALLY won't fly.  First and foremost what they paid for the debt doesn't matter.  They are an assignee.  The pennies they paid is not accord and satisfaction under contract law.  Basic contract law states they get ALL the rights and responsibilities of the OC and that includes being able to collect on the entire amount you owed when they bought the account.

6.  No their damages are not limited to what they paid.  There is NO basis in law in this.

WHERE did you get these awful defenses?  All you did was indirectly tell their attorney you have NO clue what you are doing and they are going to steam roll you in court with the rules of civil procedure.

20 minutes ago, lovie2000 said:

WHEREFORE, Defendant prays that the court take nothing of plaintiff’s complaint by virtue and dismisses the complaint with prejudice.

NOT going to happen.  TN courts are VERY debtor friendly and they have one of the longest SOLs on judgments which can be renewed.  My guess is a summary judgment is coming your way.

[Clydesmom]

5 minutes ago, lovie2000 said:

Then there is just this form

 

http://www.tncourts.gov/sites/default/files/docs/sworn_denial_-_dec_2012.pdf

Use that form and file a motion to compel arbitration.  The way to beat this is to get it OUT of court.  Midland won't arbitrate.  If you can get the MTC approved they will dismiss and drop the entire matter.

[lovie2000]

I have not filed anything, I stated that this is what I prepared and would be filing TOMORROW... I posted for help Sunday and again today

[lovie2000]

so the form is already filled out, do I file an arbitration request with my summons answer? And thanks for the help

[lovie2000]

I just dont understand how they can just get away with making people pay for accounts that dont belong to them and the courts allow it without showing any proof.

[BV80]

35 minutes ago, lovie2000 said:

I just dont understand how they can just get away with making people pay for accounts that dont belong to them and the courts allow it without showing any proof.

Unless it's a default judgment or you don't challenge their evidence, they are not going to win without some kind of proof.

In a civil lawsuit, the courts rule based upon the preponderance of the evidence.  The party who has the more convincing and believable evidence, wins.

[Clydesmom]

1 hour ago, lovie2000 said:

I just dont understand how they can just get away with making people pay for accounts that dont belong to them and the courts allow it without showing any proof.

You don't seriously believe they simply pulled your information out of thin air and decided to sue you?  10 years ago they bought accounts with no supporting documents and based off a spread sheet.  The information you are likely reading based on those affirmative defenses is WAY outdated and no longer applies.  In today's digital world when they buy a pool of defaulted accounts they get all the digital records associated with them.  Proving the debt is not near as hard as it used to be.

You also need to understand proof is what the COURT says it is not what you think it should be.

1 hour ago, lovie2000 said:

so the form is already filled out, do I file an arbitration request with my summons answer? And thanks for the help

File a separate MTC arbitration at the same time you file your answer.  DO assert private contractual arbitration in JAMS as an affirmative defense on that form.

[lovie2000]

22 minutes ago, Clydesmom said:

You don't seriously believe they simply pulled your information out of thin air and decided to sue you?  10 years ago they bought accounts with no supporting documents and based off a spread sheet.  The information you are likely reading based on those affirmative defenses is WAY outdated and no longer applies.  In today's digital world when they buy a pool of defaulted accounts they get all the digital records associated with them.  Proving the debt is not near as hard as it used to be.

You also need to understand proof is what the COURT says it is not what you think it should be.

File a separate MTC arbitration at the same time you file your answer.  DO assert private contractual arbitration in JAMS as an affirmative defense on that form.

No, I am saying the OC account number they listedin the affidavit and on the summons does not belong to me, nor was I a cosigner on any account. I disputed this account with the OC long ago when it first appeared on my CF, and they closed it, charged it off and didn't respond to my validation letters. Me not being to savvy at the time with any of this didn't bother pursuing it again. Then Midland started sending me collection letters, I disputed it and they wouldnt respond to my letters for validation. I kept disputing and they kept claiming verfication. I kept sending validation requests every time they sent me a collection bill. And now we are here 5 years later.

 

As for the MTC, I have prepared that letter, do I insert JAMS title in the MTC... because I typed was this:

In accordance with the attached Credit Card agreement, Defendant has demanded that Plaintiff enter into private contractual arbitration to settle all claims at issue between the parties of this lawsuit.  Pursuant to Tennessee Code §29-5-303, Defendant hereby moves this Court for an order compelling same and staying litigation on this matter in This Court.

[Clydesmom]

1 hour ago, lovie2000 said:

I disputed this account with the OC long ago when it first appeared on my CF, and they closed it, charged it off and didn't respond to my validation letters.

If you sent DV based on finding it on your credit report they did not have to respond to any letters.  They are only required to respond if you send it within 30 days of their first contact with YOU directly.  

1 hour ago, lovie2000 said:

Then Midland started sending me collection letters, I disputed it and they wouldnt respond to my letters for validation.

What did you ask for in validation?  As I sad before the ONLY information they are required to send you  is the name of the original creditor, address and amount you owe.  If you asked for their license, right to collect, proof etc. they were free to ignore that and to continue collection.

1 hour ago, lovie2000 said:

Me not being to savvy at the time with any of this didn't bother pursuing it again.

If the REALLY is not your account at all then why haven't you filed a police report and a FACTA report for identity theft?

1 hour ago, lovie2000 said:

I kept sending validation requests every time they sent me a collection bill. And now we are here 5 years later.

If they had already validated they were free to ignore all the other letters for validation.

1 hour ago, lovie2000 said:

As for the MTC, I have prepared that letter, do I insert JAMS title in the MTC... because I typed was this:

You need to draft a formal motion for the court not a letter.

[lovie2000]

10 hours ago, Clydesmom said:

You need to draft a formal motion for the court not a letter.

The formal motion to the court is what I am speaking of.

[lovie2000]

So I showed up at court, so many default judgements,  paid dismissals, and agreements for midland funding....smh

I stood up when my name was called, and the courts read, she's here and she also filed motion to compel arbitration...the representative for the midland and their lawyers responded, NON-SUIT...... The judge said "ypure free to go .... The account number they are reporting and swearing in their affadavit as mine is not mine.

so I guess I have to continue to fight these people to leave me alone and remove this off my report

[Brotherskeeper]

@lovie2000 Congratulations on dodging the court bullet! If this account was never truly yours, you might want to go to the National Assoc. of Consumer Advocates website and find a member attorney in your area to weigh in on your situation. Usually, the initial consultation is free. 

https://www.consumeradvocates.org/find-an-attorney

[debtzapper]

11 hours ago, lovie2000 said:

So I showed up at court, so many default judgements,  paid dismissals, and agreements for midland funding....smh

I stood up when my name was called, and the courts read, she's here and she also filed motion to compel arbitration...the representative for the midland and their lawyers responded, NON-SUIT...... The judge said "ypure free to go .... The account number they are reporting and swearing in their affadavit as mine is not mine.

so I guess I have to continue to fight these people to leave me alone and remove this off my report

Damn, your motion to compel arbitration made Midland drop you like a red hot poker

[lovie2000]

1 hour ago, debtzapper said:

Damn, your motion to compel arbitration made Midland drop you like a red hot poker

yep

[lovie2000]

12 hours ago, Brotherskeeper said:

@lovie2000 Congratulations on dodging the court bullet! If this account was never truly yours, you might want to go to the National Assoc. of Consumer Advocates website and find a member attorney in your area to weigh in on your situation. Usually, the initial consultation is free. 

https://www.consumeradvocates.org/find-an-attorney

thanks to you all

[Mx-52010]

@lovie2000 I live in TN, this EXACT thing happened to me, probably at the same courthouse. I'm trying to find out now what happens? It's been a few months. The law office representing Midland is sending the information about the dismissal back to Midland. I'm trying to find out what happens next? How do I get this gone off my credit reports, is the debt actually going to go away or is it still going to sit there until 2021 (7 years) regardless of if they pursue to collect again?

 

Thanks

C

[LauraBlevins]

I just wanted to say thanks to all of you who have posted about Midland Funding here. They sued me and I read everything y’all have posted. I filed a motion for the court to compel binding arbitration and cited the part of the original contract in my motion and the Tennessee code. 
 

When the “rent-a-lawyer” called my name I handed her the copy of my motion I filed that morning. She was like “Oh...um...okay...well, honestly I’m just here to collect money. Hahaha I’m not really prepared to handle something like this.” I gave her a confused look and said “Don’t you represent Midland Funding?” She said “Yes...I mean I’m really just a hired gun if I’m being perfectly honest. They’re gonna have to send someone down from their corporate office to handle this.”   
 

So she rescheduled the court date for November 20th. 
 

Today I got a copy of the non-suit from Midland Funding in the mail. Checkmate bottom feeders. ?

[TexanRayne]

Where exactly do you put the compel arbitration and how exactly should it be written. That form may look simple but I’m missing something. tia

[BackFromTheDebt]

15 hours ago, TexanRayne said:

Where exactly do you put the compel arbitration and how exactly should it be written. That form may look simple but I’m missing something. tia

Look up the arbitration thread.  That will have all the information you need on how to write the motion   
 

You need to put the case name and number on the motion, file according to your court’s Rules of Civil Procedure, and send a copy to the opposing attorney 

[loveluck]

Hi lovie, congratulations.

I saw your MTC example in another thread.  Did you use any case law examples in your MTC?  Also what did you use for your first 12 lines?

 

[BV80]

19 minutes ago, loveluck said:

Hi lovie, congratulations.

I saw your MTC example in another thread.  Did you use any case law examples in your MTC?  Also what did you use for your first 12 lines?

 

The sample MTC in the following thread contains case law from the United States Supreme Court.  It is precedent in every state when an arbitration provision is governed by the Federal Arbitration Act (FAA).   Adding case law from one’s own state is not absolutely necessary but may sometimes be a good idea.

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/