Being sued by Midland - Florida

[rogersmommy7]

Good Afternoon. My fiance is apparently being sued by Midland Funding in regard to a debt from SYNCHRONY bank. We're trying to figure out how to go about this as we have never dealt with something like this before. This is a debt from 2015 with the last "payment" being made in Dec of 2016. My first concern is that he was never properly served the summons for the "Pre-Trial conference/mediation". I happened upon the court document/small claims while doing a random search for his prior ticket in the county we live in on the county clerk site. It was apparently e-filed on 9-11. The weird part is it lists his address that is like 9 years old that he NEVER used with synchrony or any debtors for that matter. The attached statements on the county court site lists a Complaint, followed by a civil cover sheet followed by "NOTICE TO APPEAR FOR PRETRIAL CONFERENCE/MEDIATON ISSUED AS TO "FIANCES NAME" 9-12-18"

The notice to appear document lists his old address. It was NEVER given to him nor did we receive anything in the mail. He has not resided at this address for over 9 years. Now onto the questioner I see many answering. Any help/advise is greatly 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.) its not a firm but a bunch of lawyers - when doing a search for the one checked off it shows she works for Midland Credit.

3. How much are you being sued for?  About $1900.00

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

5. How do you know you are being sued? (You were served, right?) Was never served! Happened upon the small claims court document when searching for a prior traffic ticket. The address on the claim is over 9 years old and was never associated with this account.

6. How were you served? (Mail, In person, Notice on door) WAS NEVER SERVED!

7. Was the service legal as required by your state? I don't think so!

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? none. never received any contact about it.

9. What state and county do you live in? Florida - Manatee County.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  2016

11. When did you open the account (looking to establish what card agreement may be applicable)?  2015

12. What is the SOL on the debt? To find out:  4 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).  Not sure/Open

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

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').  No

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? There is nothing stated. It just says a pre-trial conference/mediation is set for 10/29/2018. If he doesn't appear than an automatic judgement is made. There is no option to respond or a questioner for him to fill out.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. The documents were never served. It does look like they attached a copy or two of the statements originally from Synchrony Bank and an affidavit stating "On or about 8/23/2017 Synchrony Bank formerly known as GE Capital Retail Bank sold a pool of charge-off accounts (the Accounts) by a Purchase and Sale Agreement and a Bill of Sale to Midland Funding LLC. As part of the sale of the Accounts, electronic records and other records were transferred on individual Accounts to the debt buyer. These records were kept in the ordinary course of business of Synchrony Bank formerly known as GE Capital Retail Bank."

 

Any help is greatly appreciated. Should he go to the conference? Should he send something ahead of time? Do we get an attorney? Thank you!

 

 

[Harry Seaward]

The lack of proper service only means you could use that as a reason to have a default judgment set aside. That means for you that you can do nothing, let them get a default and then you have to hassle with getting it reversed, which isn't even guaranteed. 

Instead I would file a motion to dismiss on the grounds that the court lacks personal jurisdiction (i.e. you don't live in the area served by that court). If the case is dismissed you can expect Midland to simply refile the lawsuit in the proper court,  and serve you at your current address. From there, I would employ the arbitration strategy explained in this link. 

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

 

[LonnaT]

 I found my court information online some time before I was actually served. I believe the plaintiff filed around the last week of July but I didn't get served until two weeks later, exactly 20 days before my pre-trial conference.

Do show up, and also follow Harry's advice regarding arbitration when and if your fiance receives the papers. Synchrony has a favorable arbitration agreement. 

Best of luck! If I can answer any of your questions, I'll try. People on this board have helped me tremendously (my case is still ongoing).

[rogersmommy7]

I have seen so many say to send in "your answer" we have not been served and the papers found on the county clerk do not dictate anything that requests an answer. Everything is just stating their reasoning and a set up for pre-trial meeting. How do we go about filing arbitration and filing a motion to compel and an "answer" anyway? We can get something written up and notarized by 2 friends who are notaries.. Do we just go down to the court house and file the documents? Do we have to send copies to anyone? Does it cost to file the motions or answers? we are completely lost and not sure of the next steps.

[LonnaT]

If his pretrial conference is on 10/29, he should be served no later than 10/9. I'm not sure if the info is all the same from county to county, but the time I had to file an answer was no less than 5 days before my conference date.

However, if the papers go to his old address and he doesn't receive them, they'll try and find out where he's currently living, which may push back the conference date.

 

[BackFromTheDebt]

Be careful.  Often, in Florida, you need to file an MTC instead of an answer, else you lose your right to arbitrate.  

 

That does NOT apply when you are filing for a dismissal due to improper venue.  

[Harry Seaward]

7 hours ago, rogersmommy7 said:

I have seen so many say to send in "your answer" we have not been served and the papers found on the county clerk do not dictate anything that requests an answer.

Call the court clerk and ask if "personal service" is required in your jurisdiction, or if they can just use mail. If personal service is required, see if an affidavit of service is required in your jurisdiction, and if so, ask if one has been filed in your case. I'm guessing that,  if personal service is required, the process server lied and said you were served. 

[LonnaT]

[]

[rogersmommy7]

Fiance was finally served this morning. 13 days prior the "Pre-Trial Conference/mediation". Could someone please direct me on what our next steps are? We looked up the arbitration clause for synchrony and it should be a legitimate defense.

There is nothing in the document that says an answer must be filed. The only part about an "answer" is on the front page of the notice and it says "The defendants must appear in court on the date specified in order to avoid a default judgement. The plaintiffs must appear to avoid having the case dismissed for lack of prosecution. A written MOTION or ANSWER to the court by the plaintiffs or the defendants shall not excuse the personal appearance of a party or it's attorney"

How do we go about filing an answer anyway with the defense being electing for arbitration? Fiance suggested we call midland or the lawyer and offer a really low % of the debt owed (Like $500 bucks of the $1800) to settle or tell them we will be filing an answer and electing arbitration. Do we have to a MTC? Can we just call and let them know we intend to elect arbitration and see what they say? Does it cost to file an answer/MTC with the court? We're so lost and it's 13 days until the pre-trial.. Fiance is so fed up he wants to just not go and let it do whatever it's going to do. We honestly can only afford about $500 max and that's pushing it. Thanks..

[Clydesmom]

42 minutes ago, rogersmommy7 said:

Fiance suggested we call midland or the lawyer and offer a really low % of the debt owed (Like $500 bucks of the $1800) to settle or tell them we will be filing an answer and electing arbitration.

He can try it but the reality is they will most likely ignore him.  They have a valid suit pending.  Now they can go through with that unless the court compels arbitration.  They will treat this threat like the bankruptcy threat:  most consumers make the threat few follow through.

43 minutes ago, rogersmommy7 said:

Do we have to a MTC?

If you want to force Midland to fold you need a signed MTC from the court.  Simply saying it isn't enough.

44 minutes ago, rogersmommy7 said:

Can we just call and let them know we intend to elect arbitration and see what they say?

No threat in saying it.  They will ignore him.

44 minutes ago, rogersmommy7 said:

Does it cost to file an answer/MTC with the court?

You would have to ask the court.  Some charge some don't.

45 minutes ago, rogersmommy7 said:

Fiance is so fed up he wants to just not go and let it do whatever it's going to do. We honestly can only afford about $500 max and that's pushing it.

Well, that is what Midland is hoping he will do.  He may have some small hope as head of household that his income is too small to garnish in FL if they get a judgment but I would not count on that.

46 minutes ago, rogersmommy7 said:

How do we go about filing an answer anyway with the defense being electing for arbitration?

This is not a simple DIY project.  You need to research how to file an answer and MTC.  There is no "we" in this.  Unfortunately "fiancee" is not a legal term it is emotional.  You have no legal standing to be involved and cannot represent him in court so unless he is going to get his head in the game and do something or hire a lawyer to represent him then settling might be his best option.  

[LonnaT]

Not sure what county you're in. I was told that you don't have to file an answer in small claims and it seems most people don't. But I was already at the courthouse and the clerk checked with a supervisor and so they let me file it. My answer had the affirmative defense in it, and it cost me nothing to file an answer along with the MTC. I know there's been conflicting info about answering a suit in Florida, but the consensus seems to be you MUST raise arbitration in your affirmative defense; otherwise, you waive your right to it. See my post above and read fist's arbitration thread: 

 

In my county, you have to submit an answer no less than 5 days before the pretrial/mediation. 

It's up to your fiance, of course, but if he doesn't want to do all of this legwork, he might be able to hire a consumer attorney for around the amount he wants to settle for. At the very least, you may want to PM @LawKitty She's a Florida attorney.

[rogersmommy7]

Ok so court date is Monday and we never filed any kind of answer. There was nothing we could find for our county about filing an answer and it says clearing on the summons that he MUST appear to avoid default judgement. Question is now, if he brings the synchrony card agreement to court monday and "denies" everything stating that he wants this taken to arbitration while at the mediation/pre-trial will that work or is he screwed now being it wasn't submitted PRIOR to the court appearance/pre-trial?