Maru1 Posted September 23, 2018 Report Share Posted September 23, 2018 Hello all, Yesterday I received a summons letter taped to my front door from Midland Funding LLC. Apparently, they tried reaching me before but being that I work two jobs I had missed them. I noticed at the bottom of the Small claims/debt claim case citation page nothing is written in 22 day of September 2018. It also says at the bottom of the next page that I received this letter or someone did on Jul 31, 2017. I really can't do anything being that its Sunday but plan on calling the court to make sure there is a case number. This is my first time being sued and really don't know what to do or expect. I found this on my state's board: Who is prohibited from filing a Small Claims: Some entities may not use Small Claims Court. An assignee of a claim or any other person seeking to bring an action on a claim which has been assigned is prohibited from seeking relief in the Small Claims Court. A person who is primarily engaged in the business of lending money with interest may not file a claim in the Small Claims Court. A collection agency or a collection agent is also prohibited from bringing an action in the Small Claims Court. Any help on what the next step should be would be greatly appreaciated...thank you all Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 23, 2018 Report Share Posted September 23, 2018 That's right. Midland is an "assignee" and prohibited from suing you in Small Claims Court there in Texas. IMO, that is an FDCPA violation if they did sue you in Small Claims. And if they didn't sue you, but put a fake summons on your door, that also is a violation. I would talk to a couple consumer rights lawyers to see what they have to say. https://www.consumeradvocates.org/find-an-attorney Who is the OC on this debt? Quote Link to comment Share on other sites More sharing options...
Maru1 Posted September 23, 2018 Author Report Share Posted September 23, 2018 Citibank, N.A. is the original creditor Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 23, 2018 Report Share Posted September 23, 2018 Ok, so that means arbitration is out in small claims. If they decide to sue you in a higher court, however, you can use arbitration there. Quote Link to comment Share on other sites More sharing options...
Maru1 Posted September 23, 2018 Author Report Share Posted September 23, 2018 17 minutes ago, Harry Seaward said: Ok, so that means arbitration is out in small claims. If they decide to sue you in a higher court, however, you can use arbitration there. Sorry for this reply, but can you elaborate? Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 23, 2018 Report Share Posted September 23, 2018 Midland has never arbitrated a debt. When courts order them to participate in arbitration, they dismiss their claims and walk away. The catch is that arbitration is only available if it's part of the original credit card agreement. Citi agreements do have arbitration provisions, but they have an exemption for small claims cases. I.e. if the case is filed in a small claims court, neither party can use arbitration. So while your case is in small claims court, you cannot use arbitration. If you manage to get the case dismissed from small claims court, and Midland decides to re-sue you in a higher court, you can then invoke the arbitration provision to deal with this debt that way. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/ Quote Link to comment Share on other sites More sharing options...
BV80 Posted September 23, 2018 Report Share Posted September 23, 2018 2 hours ago, Maru1 said: Hello all, Yesterday I received a summons letter taped to my front door from Midland Funding LLC. Apparently, they tried reaching me before but being that I work two jobs I had missed them. I noticed at the bottom of the Small claims/debt claim case citation page nothing is written in 22 day of September 2018. It also says at the bottom of the next page that I received this letter or someone did on Jul 31, 2017. I really can't do anything being that its Sunday but plan on calling the court to make sure there is a case number. This is my first time being sued and really don't know what to do or expect. I found this on my state's board: Who is prohibited from filing a Small Claims: Some entities may not use Small Claims Court. An assignee of a claim or any other person seeking to bring an action on a claim which has been assigned is prohibited from seeking relief in the Small Claims Court. A person who is primarily engaged in the business of lending money with interest may not file a claim in the Small Claims Court. A collection agency or a collection agent is also prohibited from bringing an action in the Small Claims Court. Any help on what the next step should be would be greatly appreaciated...thank you all You need to talk to an attorney because the small claims rule you cited may no longer be in effect. If Chapter 28 of the TX Government Code was cited, that chapter was repealed effective 2013. Check out the following link. https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ContentDisplay.cfm&ContentID=22242 Notice that the first paragraph shows that small claims court were abolished. Quote Link to comment Share on other sites More sharing options...
Maru1 Posted September 23, 2018 Author Report Share Posted September 23, 2018 1 hour ago, Harry Seaward said: Midland has never arbitrated a debt. When courts order them to participate in arbitration, they dismiss their claims and walk away. The catch is that arbitration is only available if it's part of the original credit card agreement. Citi agreements do have arbitration provisions, but they have an exemption for small claims cases. I.e. if the case is filed in a small claims court, neither party can use arbitration. So while your case is in small claims court, you cannot use arbitration. If you manage to get the case dismissed from small claims court, and Midland decides to re-sue you in a higher court, you can then invoke the arbitration provision to deal with this debt that way. https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/ Ok great, so basically no need to worry about this? I'm still going to call the court on the case number to see if it was even legit tomorrow Quote Link to comment Share on other sites More sharing options...
BV80 Posted September 23, 2018 Report Share Posted September 23, 2018 1 minute ago, Maru1 said: Ok great, so basically no need to worry about this? I'm still going to call the court on the case number to see if it was even legit tomorrow If a lawsuit has been filed, you do need to worry about it. You need to take the proper action whether you choose to fight in court or motion to compel arbitration. Quote Link to comment Share on other sites More sharing options...
Maru1 Posted September 23, 2018 Author Report Share Posted September 23, 2018 30 minutes ago, BV80 said: You need to talk to an attorney because the small claims rule you cited may no longer be in effect. If Chapter 28 of the TX Government Code was cited, that chapter was repealed effective 2013. Check out the following link. https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ContentDisplay.cfm&ContentID=22242 Notice that the first paragraph shows that small claims court were abolished. I want to be sure of what I'm reading here. I'm understanding that small claims are no more and everything goes to the Justice courts? On the paperwork it reads small claims/ debt claim case citation. Quote Link to comment Share on other sites More sharing options...
Maru1 Posted September 23, 2018 Author Report Share Posted September 23, 2018 11 minutes ago, BV80 said: If a lawsuit has been filed, you do need to worry about it. You need to take the proper action whether you choose to fight in court or motion to compel arbitration. It reads on the paper " this lawsuit " but it's only a copy. Next step is calling them up and letting them know what I want to do? The court? Motion to compel arbitration meaning they need to show me paperwork? Quote Link to comment Share on other sites More sharing options...
BV80 Posted September 23, 2018 Report Share Posted September 23, 2018 6 minutes ago, Maru1 said: I want to be sure of what I'm reading here. I'm understanding that small claims are no more and everything goes to the Justice courts? On the paperwork it reads small claims/ debt claim case citation. That’s how it appears. I don’t know why the paperwork says “small claims”. 5 minutes ago, Maru1 said: It reads on the paper " this lawsuit " but it's only a copy. Next step is calling them up and letting them know what I want to do? The court? If it’s legitimate, the original is probably filed with the court. Your next step is to call the clerk of court’s office and provide the case number. 1 Quote Link to comment Share on other sites More sharing options...
Pericles Posted September 23, 2018 Report Share Posted September 23, 2018 24 minutes ago, Maru1 said: I want to be sure of what I'm reading here. I'm understanding that small claims are no more and everything goes to the Justice courts? On the paperwork it reads small claims/ debt claim case citation. A debt claim case in TX Justice Court is governed by additional rules not applicable to a small claims case. See this post for some references. It appears that even though the Texas legislature abolished "small claims court" in 2013, a lot of the legacy terminology still remains on various TX court websites and form documents. While "small claims court" may be gone, there is still something called a "small claims case" in TX Justice Court. But debt buyers shouldn't be filing a small claims case in TX Justice Court, they should instead be filing a debt claim case in TX Justice Court. In arguing that the arbitration agreement applies to Midland's claims, you'd have to show that a "debt claim case" is not a "small claims case". If your paperwork shows a forward slash between "small claims" and "debt claim", perhaps there is some similarity between these divisions. But definitionally, they appear to be distinct. It appears that you were served by alternative service. Process servers usually do alternative service by certified mail or "post to door", or both. You should obtain the docket for your case to determine the effective date of service. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 23, 2018 Report Share Posted September 23, 2018 1 hour ago, Pericles said: In arguing that the arbitration agreement applies to Midland's claims, you'd have to show that a "debt claim case" is not a "small claims case". I see it differently. The Citi agreement says cases filled in "small claims court" are not subject to arbitration. Citi never defined what "small claims court" means, so if there's no "small claims court" in Texas, it's impossible to have been sued there, and the exemption from the card agreement doesn't apply. And this argument has successfully been made in other jurisdictions. 1 Quote Link to comment Share on other sites More sharing options...
BV80 Posted September 23, 2018 Report Share Posted September 23, 2018 37 minutes ago, Harry Seaward said: I see it differently. The Citi agreement says cases filled in "small claims court" are not subject to arbitration. Citi never defined what "small claims court" means, so if there's no "small claims court" in Texas, it's impossible to have been sued there, and the exemption from the card agreement doesn't apply. And this argument has successfully been made in other jurisdictions. While small claims courts were abolished, small claims CASES are filed in Justice Court. So I guess it would depend on whether or not a justice court is considered the equivalent of a small claims court. Quote Link to comment Share on other sites More sharing options...
Pericles Posted September 23, 2018 Report Share Posted September 23, 2018 31 minutes ago, Harry Seaward said: I see it differently. The Citi agreement says cases filled in "small claims court" are not subject to arbitration. Citi never defined what "small claims court" means, so if there's no "small claims court" in Texas, it's impossible to have been sued there, and the exemption from the card agreement doesn't apply. And this argument has successfully been made in other jurisdictions. Yes, that is a plausible argument. I made the same point in my linked post from February. The language in the agreement is "small claims court", and, as you say, it is not further defined. Neither a "small claims case" or a "debt claim case" are filed in a TX court named "small claims court". Both are filed in a TX court named "justice court". The agreement is still subject to interpretation by the judge. So, I wonder if this argument is just a bit too clever. Especially when a "small claims case" is not a "debt claim case". There are post-2013 TX cases on the forum here where there was some sort of "small claims" language in the agreement, and arbitration was still ordered. And a couple when it wasn't (because of the supposed small claims carve out). I suppose the question for the OP is; does he feel lucky? OP will just have to make the best argument and alternative argument that he can. Quote Link to comment Share on other sites More sharing options...
Maru1 Posted September 23, 2018 Author Report Share Posted September 23, 2018 3 hours ago, Pericles said: A debt claim case in TX Justice Court is governed by additional rules not applicable to a small claims case. See this post for some references. It appears that even though the Texas legislature abolished "small claims court" in 2013, a lot of the legacy terminology still remains on various TX court websites and form documents. While "small claims court" may be gone, there is still something called a "small claims case" in TX Justice Court. But debt buyers shouldn't be filing a small claims case in TX Justice Court, they should instead be filing a debt claim case in TX Justice Court. In arguing that the arbitration agreement applies to Midland's claims, you'd have to show that a "debt claim case" is not a "small claims case". If your paperwork shows a forward slash between "small claims" and "debt claim", perhaps there is some similarity between these divisions. But definitionally, they appear to be distinct. It appears that you were served by alternative service. Process servers usually do alternative service by certified mail or "post to door", or both. You should obtain the docket for your case to determine the effective date of service. You are absolutely right! On my copy, it does say: SMALL CLAIMS/DEBIT CLAIM CASE CITATION. I'll get back to everyone sometime tomorrow after I call. Quote Link to comment Share on other sites More sharing options...
Maru1 Posted September 23, 2018 Author Report Share Posted September 23, 2018 1 hour ago, BV80 said: While small claims courts were abolished, small claims CASES are filed in Justice Court. So I guess it would depend on whether or not a justice court is considered the equivalent of a small claims court. I will ask this question when the office opens tomorrow. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 24, 2018 Report Share Posted September 24, 2018 On 9/23/2018 at 2:03 PM, BV80 said: it would depend on whether or not a justice court is considered the equivalent of a small claims court. The agreement doesn't have the "equivalent" language so it would improper for the court to draw that conclusion on its own. 1 Quote Link to comment Share on other sites More sharing options...
Maru1 Posted September 25, 2018 Author Report Share Posted September 25, 2018 Hello all, Ok, so today I tried calling the number on the paper given and no one was answering what so ever. I tried in intervals of 15 and after no success contacted another precinct. The lady there tells me that her precinct was the wrong one ( which I know ) and gave me the phone number to the original precinct. I explained to her what happend so she says let me call from this office phone to see if anyone answers. Well guess what? They answered. She explained to me that they are in the process of moving to another location and won't be back open till Thursday. I'm hoping the 14 days to respond won't be counted as being because of their move. I can't find out anything till Thursday. I did look up my case number today and my file did come up. I'm taking this is legit. On the paper, it says, " you or your attorney must file a written answer with the court. " Answer towards what? Saying what? Could or will I be able to handle something like this on my own? Quote Link to comment Share on other sites More sharing options...
BV80 Posted September 25, 2018 Report Share Posted September 25, 2018 33 minutes ago, Maru1 said: Hello all, Ok, so today I tried calling the number on the paper given and no one was answering what so ever. I tried in intervals of 15 and after no success contacted another precinct. The lady there tells me that her precinct was the wrong one ( which I know ) and gave me the phone number to the original precinct. I explained to her what happend so she says let me call from this office phone to see if anyone answers. Well guess what? They answered. She explained to me that they are in the process of moving to another location and won't be back open till Thursday. I'm hoping the 14 days to respond won't be counted as being because of their move. I can't find out anything till Thursday. I did look up my case number today and my file did come up. I'm taking this is legit. On the paper, it says, " you or your attorney must file a written answer with the court. " Answer towards what? Saying what? Could or will I be able to handle something like this on my own? You must respond to the allegations in the complaint. See if your court has a form you can use. It might allow for a general denial of the allegations. You also assert your defenses. If you plan on filing a motion to compel arbitration, then arbitration as provided for in the agreement would be a defense. 1 Quote Link to comment Share on other sites More sharing options...
LaneBlane Posted September 25, 2018 Report Share Posted September 25, 2018 47 minutes ago, Maru1 said: I'm hoping the 14 days to respond won't be counted as being because of their move. I can't find out anything till Thursday. Don't assume you'll have an additional 14 days to respond to the complaint. File your answer on time. Here's an official state site that may help: https://selfhelp.efiletexas.gov/SRL/ I would try clicking "Start a Filing" and then "Civil Answer" from the menu. I'm not sure if this will lead you in the right direction. This site may also be helpful: http://www.texascourthelp.org/civil/i-was-served-with-a-lawsuit-what-should-i-do/#.W6mMMPZryUk 1 Quote Link to comment Share on other sites More sharing options...
Maru1 Posted September 25, 2018 Author Report Share Posted September 25, 2018 I think with everything going on I might just look for a lawyer since this is my first time going through this process. Anyone know of good lawyers in the texas area? I was checking out a place called Weston Legal, PLLC. They seem to be legit based on google reviews. As always, any help will be appreciated. Quote Link to comment Share on other sites More sharing options...
LaneBlane Posted September 25, 2018 Report Share Posted September 25, 2018 52 minutes ago, Maru1 said: I think with everything going on I might just look for a lawyer since this is my first time going through this process. Anyone know of good lawyers in the texas area? I was checking out a place called Weston Legal, PLLC. They seem to be legit based on google reviews. As always, any help will be appreciated. I would recommend that you find a local attorney who specializes in consumer credit suits. A good consumer credit attorney should be very familiar with Midland/Citibank. Quote Link to comment Share on other sites More sharing options...
Harry Seaward Posted September 26, 2018 Report Share Posted September 26, 2018 11 hours ago, Maru1 said: I think with everything going on I might just look for a lawyer since this is my first time going through this process. Lawyer's charge +/-$2,500 to defend debt collection cases, so if the debt is anywhere near that amount, you're better off guaranteeing yourself an outcome by trying to settle directly with Midland yourself. Quote Link to comment Share on other sites More sharing options...
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