Being sued by Midland Funding LLC in CA

[ayemama]

I apologize if it seems like I don't know what I'm doing, for I don't. I was very surprised to find out that I was being sued for a nearly 5 year old debt. I wasn't even the one who was served; they served my step-dad at an address I haven't lived at in years (doesn't matter, I know). I don't know what to do.

 

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.)

 - Jack H. Pogosian / Alec Weston Hankins / Kristy Gabrielova / Nichol Alan De Guzman / Hyo Jin Julia Jung / Midland Funding LLC

3. How much are you being sued for?

 - 1,149.82

4. Who is the original creditor? (if not the Plaintiff)

 - Best Buy

5. How do you know you are being sued? (You were served, right?)

 - My step-dad was served and then I was told

6. How were you served? (Mail, In person, Notice on door)

 - In person

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?

 - None

9. What state and county do you live in?

 - CA and I live in Sacramento county, but the case was filed in El Dorado County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

 - May 2015

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

 - November 2014

12. What is the SOL on the debt?

 - 4 years

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).

 - So far, they just filed suit and served me 

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

 - Yes.

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 disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').

 - No, I did not.

16. How long do you have to respond to the suit? (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. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

 - I have 30 days from when they served "me" which was the 15th of July. 

 1. States that Midland Funding LLC ("Plaintiff") is a limited liability company qualified to do business in CA.

 2. That I live in El Dorado County (But I don't)

 3. It says that they're unaware of my true name (it's addressed to my maiden name) and that they'll ask leave of court to amend this complaint 

 4. "At all times herein mentioned, Defendants, and each of them, were the principals, agency, employers, employees, masters, or servants of each of their co-defendants and ratified, adopted and approved the acts or omissions alleged herein, and each defendant, in doing the things alleged, were acting in the course and scope of said authority of such agents, servants, and employees.

 5. Plaintiff is a debt buyer

 6. They're seeking to recover the amount of 1,1449.82. This is the amount due on the credit card account.

 7. Plaintiff is the sole owner of the debt. Exhibit A is the copy of the Bill of Sale from CITIBANK to Plaintiff. Account was purchased on 6/29/16

 8. Account balance at the time of charge-off was 1,149.82

 9. An explanation of the amount that the plaintiff is seeking to recover

 10. Plaintiff alleges the date of default is 7/7/15 and that the last payment was made on 5/3/15, which was made to citibank

 11. Plaintiff alleges that the original creditor is at the time of charge-off was Citibank and then provides Citibank's address and the account number. 

 12. Plaintiff alleges that the debtor as it appeared on the records for Citibank was (maiden name) and last known address was (old address)

 13. Plaintiff alleges that the name and address of all post charge-off purchasers of the debt are: Midland Funding LLC 2365 Northside Dr. Suite 300 San Diego, CA 92108

 14. Plaintiff alleges that it informed me of the assignment of the account and Exhibit B is a correct copy of first written communication sent to me by plaintiff

 15. Exhibit C is a true and correct copy of a monthly statement recording a purchase transaction, payment or balance while the account was active

 16. The account balance at the time of charge off was 1,149.82 and Exhibit D is a correct copy of a billing statement that was mailed to me stating the balance due on the account at or around the time of charge-off

 17. Plaintiff seeks to recover 1,149.82 from me

 18. "As alleged above, before filing this suit, all right, title and interest to the account were sold and assigned to plaintiff. Plaintiff owns the account and is entitled to collect of the account as if it were the original creditor. To the extent that plaintiff acts in its capacity as successor-in-interest to the original creditor or its assigns, references herein to plaintiff may include plaintiff's predecessor-in-interest."

 19. Prior to filing, plaintiff informed me in writing that it intended to file this action and could result in a judgement against me that would include court costs. Exhibit E is a copy of plaintiff's most recent attempt at resolving the underlying obligation.

 20. Plaintiff owns portfolios of consumer receivables, which it attempts to collect, and that they generally attempt to contact consumers like me through several means, such as phone calls, letters, or other means. Midland attempts to assess each consumer's willingness to pay, through phone calls, letters, or other means. Midland attempts to exclude consumers from its collection efforts when they believe those consumers are facing extenuating circumstances or hardships that would prevent them from making payments. 

 21. That when Midland contacts consumers, it strives to treat consumers with respect, compassion, and integrity. 

 22. Despite Midland's efforts to reach consumers, only a percentage of consumers choose to engage with Midland. 

 23. Majority of Midland's consumers ignore calls or letter, and some simply refuse to repay their obligations despite an apparent ability to do so. When that happens, they pursue collection through legal channels, including litigation like the present action against me. "Although the account is now in litigation, plaintiff remains willing to explore a mutually-beneficial solution through voluntary payment arrangements, if possible."

 24. "Plaintiff re-alleges and incorporates by reference the foregoing paragraphs."

 25. "Defendant opened, used, and derived benefit from the account through the defendant's own use of the account or by another's use at the defendant's direction. By using the account, defendant expressly agreed or impliedly promised to repay plaintiff."

 26. "Within the last four (4) years, defendant became indebted on the account to plaintiff in the sum of 1,149.82 on the account stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff."

 27. "Regular monthly statements were mailed to defendant listing debits, credits, and balance due on the account, attached as Exhibit D." 

 28. Last payment made on the account was 5/3/15 to Citibank

 29. Plaintiff has no record of me objecting to the monthly statements after receipt. 

 30. Plaintiff has made demand on defendant for repayment of the account stated but defendant has failed to pay the balance due. Exhibit B is a copy of first written communication requesting payment that was sent to the consumer by plaintiff.

 31. "As of the date of this complaint there is due and owing the unpaid sum of 1,149.82. This amount was arrived by subtracting all payments and applying all credits (if any) to the charge-off balance of 1,149.82 as indicated on the charge-off statement, attached here to as Exhibit D.  WHEREFORE, plaintiff prays for judgement against defendant as follows:

On the First Cause of Action:

1. For the unpaid balance of 1,149.82;

2. Costs of suit;

3. Such other relief as the Court may deem just and proper.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Listed throughout above

18. Read these two links:

Using Arbitration To Defend A Debt Collection Lawsuit

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

I need to respond very soon, so any help is greatly appreciated. 

[Harry Seaward]

Some would say to try to battle them in court. I'd be using arbitration since Midland will dismiss rather than arbitrate. 

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