Please Help! Being sued by Midland Funding in Florida - Should I answer?

[Drochelle]

Hi everyone,

I recently found out that I am being sued by Midland Funding when I was recently served with a summons. I do intend to file for bankruptcy, however I am worried that the bankruptcy documents will not be completed in time. I am worried if I do not file an answer that they will garnish my wages or freeze my bank account, how long does this typically take if a default judgement is issued? Is there a cost associated with filing an answer with the court? Thank you so much for any help you can provide me.

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.) A group of lawyers working for Midland Funding

3. How much are you being sued for?  About $7,102.59

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?) Served on October 13, 2018

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

7. Was the service legal as required by your state? Unsure, no ID was requested from me. From the clerk of courts website I can see that the information the process server provided does not match my description. She put age 25, I am 31 and she put my height wrong if that matters. She also told my boyfriend she was with the sheriff’s office and it looks like she was just a with a surveillance company

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Zero, never received anything from them before.

9. What state and county do you live in? Florida – Broward 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)?  2014

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).  Pending/Pluries Summons Returned Served

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? 20 calendar days (Friday, November 2, 2018)

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. 

·         Statement from 9/26/16 and 2/22/17 (Both have account number crossed out)

·         Affidavit of sale of account by original creditor (signed by Shannon Wilgen)-no personal information or account number just that on 4/19/2017 Synchrony Bank formerly GE Capital Retail Bank sold a pool of charge-off accounts by a Purchase and Sale Agreement and a Bill of Sale to Midland Funding LLC.

·         Blanket Certificate of conformity for notary Nancy Quenomoen

·         Synchrony Bank Bill of Sale with information crossed out and nothing related to me signed by Ken Wojcik SVP Collections and Recovery’s…Purchase agreement dated 26^th day of August 2016 and Seller to Buyer April 19, 2017

·         Purchase Price Reconciliation/Funding Instructions with almost everything crossed off – nothing related to me personally or the account

·         Then another copy of the affidavit of sale of account by original credit and Blanket Certificate (maybe it was just a duplicate sent by mistake)

·         Certificate of a federal savings association title change by Thomas J. Curry, Comptroller of the Currency listing GE Capital Retail Bank being changed to Synchrony

·         Then there is a sheet that say it is data printed from electronic record provided by Synchrony Bank pursuant to the bill of sale/assignment of accounts transferred on or about 4/27/2017 in connection with the sale of accounts from Synchrony Bank to Midland Funding LLC. This has account number, customer id last 4, home phone and my birthday scratched out.

·         Then a letter from Midland Credit Management sent to an old address advising of ownership of account on 6/22/2017 and it has the account number crossed out

Any help is greatly appreciated. I just am really worried and would appreciate any advice on what I should do as I do. Thank you!

 

 

 

 

[nobk4me]

Unless you want to get a default judgment against you, you should answer the lawsuit.

But, given the OC, there is even a better strategy, IMO:  arbitration.  Since you are in Florida, if you want to use arbitration, you should file a MTC Arb instead of the answer, as answering a lawsuit can be construed as waiving arb rights in that state.

Look here for more info on arb:

 

 

[BackFromTheDebt]

2 hours ago, nobk4me said:

Since you are in Florida, if you want to use arbitration, you should file a MTC Arb instead of the answer, as answering a lawsuit can be construed as waiving arb rights in that state.

Read this part of the answer carefully.

Now, read it again.

Make sure you understand this completely.  

What people on this forum from Florida have found is that if they answer at all, they are usually deemed to have waived their rights to arbitration.

In other words:

Sychronicity has a GREAT arbitration clause.  You can use that to beat Midland most of the time if you get them into arbitration.

The ONLY way to get use arbitration is to file an MTC instead of an answer.  Not with the answer, not just before or just after the answer, but INSTEAD of the answer.  Florida is weird that way.  

Sorry to belabor this point, but @nobk4me just gave you really good advice.  I wanted to make sure you really understand what he is saying, and pay attention to what he advised you.

Now, he also gave you a homework assignment.  Time to get reading.  

[BV80]

1 hour ago, BackFromTheDebt said:

Read this part of the answer carefully.

Now, read it again.

Make sure you understand this completely.  

What people on this forum from Florida have found is that if they answer at all, they are usually deemed to have waived their rights to arbitration.

In other words:

Sychronicity has a GREAT arbitration clause.  You can use that to beat Midland most of the time if you get them into arbitration.

The ONLY way to get use arbitration is to file an MTC instead of an answer.  Not with the answer, not just before or just after the answer, but INSTEAD of the answer.  Florida is weird that way.  

Sorry to belabor this point, but @nobk4me just gave you really good advice.  I wanted to make sure you really understand what he is saying, and pay attention to what he advised you.

Now, he also gave you a homework assignment.  Time to get reading.  

It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration, id.; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration. Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 687 (Fla. 2d DCA 2009) (citing Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992)).

 

Florida courts have routinely held that a party's active participation in a lawsuit (including filing a lawsuit, filing an answer that does not assert the right to arbitrate, moving for summary judgment, or conducting discovery) is inconsistent with the right to compel arbitration. Truly Nolen of Am., Inc. v. King Cole Condo. a$$'n, 143 So. 3d 1015, 1017 (Fla. 3d DCA 2014).

 

In the context of arbitration, a waiver of the right to arbitrate occurs when a party actively participates in a lawsuit or engages in conduct inconsistent with the right to arbitrate. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005).

 

[BackFromTheDebt]

Thanks for the clarification, @BV80

 

Considering how weird some judges are, If I lived in Florida (which I don't), I would still very seriously consider ONLY filing an MTC in lieu of an answer.  

[LonnaT]

On 10/27/2018 at 9:35 PM, BackFromTheDebt said:

 

 

Considering how weird some judges are, If I lived in Florida (which I don't), I would still very seriously consider ONLY filing an MTC in lieu of an answer.  

This was something I wasn't clear about but based on the caselaw that BV80 cited, as well as hearing that some people had their MTC denied because a judge thought they were maybe being evasive or "clever" by not filing an answer and only a MTC, I filed an answer WITH arbitration raised as an affirmative defense, along with a MTC. Had no trouble. BUT, the plaintiff's attorneys I've dealt with so far in my case don't sound like they know what day it is half the time, so I think I've been fortunate.

[BackFromTheDebt]

1 hour ago, FLnative said:

This was something I wasn't clear about but based on the caselaw that BV80 cited, as well as hearing that some people had their MTC denied because a judge thought they were maybe being evasive or "clever" by not filing an answer and only a MTC, I filed an answer WITH arbitration raised as an affirmative defense, along with a MTC. Had no trouble. BUT, the plaintiff's attorneys I've dealt with so far in my case don't sound like they know what day it is half the time, so I think I've been fortunate.

That is very interesting.

 

The problem is, judges do the darnedest things!  They will ignore the case law, or even the written statutes, if they feel like it.

 

[BV80]

58 minutes ago, BackFromTheDebt said:

That is very interesting.

 

The problem is, judges do the darnedest things!  They will ignore the case law, or even the written statutes, if they feel like it.

 

That is the reason for appeals courts.  

[lisa7267]

YOU GUYS!!! I did it! I followed the advice in the forums and today I went to court-the judge DISMISSED it! The attorneys that Midland hire are rentalawyers and they have NO documentation. They didnt even have the pages filed w the suit! I did file a motion to compel arbitration but the judge didnt have it yet so she would not address it. I told her that Midland Funding has not provided me enough info to sufficiently state whether or not I owe the debt and she asked me what I was wanting them to show me. I said a signed contract or agreement, where the debt initiated at, what it was used for etc. The attorney had none of that and she got ticked at him (lol)...she said shes dismissing it and that he had better start coming prepared instead of wasting the courts time. So i am here to encourage fellow Floridians- stand your ground! They do NOT have what they need to prove the debt is yours! Thank you to you all!  

[nobk4me]

37 minutes ago, lisa7267 said:

YOU GUYS!!! I did it! I followed the advice in the forums and today I went to court-the judge DISMISSED it! The attorneys that Midland hire are rentalawyers and they have NO documentation. They didnt even have the pages filed w the suit! I did file a motion to compel arbitration but the judge didnt have it yet so she would not address it. I told her that Midland Funding has not provided me enough info to sufficiently state whether or not I owe the debt and she asked me what I was wanting them to show me. I said a signed contract or agreement, where the debt initiated at, what it was used for etc. The attorney had none of that and she got ticked at him (lol)...she said shes dismissing it and that he had better start coming prepared instead of wasting the courts time. So i am here to encourage fellow Floridians- stand your ground! They do NOT have what they need to prove the debt is yours! Thank you to you all!  

Great news.  Was it dismissed with or without prejudice?

[lisa7267]

3 minutes ago, nobk4me said:

Great news.  Was it dismissed with or without prejudice?

Unfortunately, it was dismissed in the way that they can refile if they want to. Judge said she’s allowing them time to gather the proof needed and they can refile when they do. I’m hoping they won’t!!

[Goody_Ouchless]

48 minutes ago, lisa7267 said:

They do NOT have what they need to prove the debt is yours!

Yea, they do. You got very lucky. 

[Drochelle]

Thank you everyone for your help. I am preparing my answer and mtc arbitration just so I have everything ready no matter what I need to do. I now have 4 days and am still awaiting the bankruptcy to be fixed. Does anyone know if I file bankruptcy right after MTC arbitration will I still need to go to court? Thanks for your help. Also how long after filing an answer or MTC will I be issued a court date? I was struggling to find this answer on the website.

I also received a strange letter from Midland in the mail today(see attached) it’s like they want to settle and they still block out my my account number. Should they be sending me mail correspondence like this about the lawsuit?

[Clydesmom]

42 minutes ago, Drochelle said:

Does anyone know if I file bankruptcy right after MTC arbitration will I still need to go to court?

A properly filed bankruptcy should stop the lawsuit cold.

43 minutes ago, Drochelle said:

Also how long after filing an answer or MTC will I be issued a court date? I was struggling to find this answer on the website.

There is no standard answer.  Generally within 30 days.

43 minutes ago, Drochelle said:

I also received a strange letter from Midland in the mail today(see attached) it’s like they want to settle and they still block out my my account number. Should they be sending me mail correspondence like this about the lawsuit?

Yes.  Either side can make settlement offers at any time.

[Drochelle]

Hi guys,

 

So last Friday I filed my Answer & Affirmative Defenses, Notice of Appearance, and Certificate of Service with the county clerk and with cent the copy CCRR to the JDB. It was a PO Box, no return receipt has been received yet. I am filing for Bankruptcy and all of my documents will be completed late next week. Should I still send a request for discovery?

 

The only claim was for Account States and so much information was redacted on the summons. The OC account number isn’t listed anywhere. They sen two CC statements (also with redacted account numbers) and the last one shows the account as still open, not balance of $0 as if it was charged off. 

 

Any advice would be greatly appreciated.

 

Thank you so much!

[Drochelle]

Sorry for the large text above, I will edit it when I get to a computer. Was copied from note app.

[BackFromTheDebt]

If you are in BK proceedings, I assume you already have an attorney, and you know the suit will stop cold as soon as BK is filed.  

If you are in doubt, ask your attorney.  I personally don't see the upside of continuing to litigate a case that will soon be dead.  Maybe I am missing something.   

[fisthardcheese]

On 11/7/2018 at 11:20 PM, BackFromTheDebt said:

If you are in BK proceedings, I assume you already have an attorney, and you know the suit will stop cold as soon as BK is filed.  

If you are in doubt, ask your attorney.  I personally don't see the upside of continuing to litigate a case that will soon be dead.  Maybe I am missing something.   

Agreed.  If you are just a few weeks from Bk, I wouldn't even bother answering the lawsuit and instead just list it as part of my creditors.

[DEE CRESPIN]

On 10/29/2018 at 3:23 PM, lisa7267 said:

YOU GUYS!!! I did it! I followed the advice in the forums and today I went to court-the judge DISMISSED it! The attorneys that Midland hire are rentalawyers and they have NO documentation. They didnt even have the pages filed w the suit! I did file a motion to compel arbitration but the judge didnt have it yet so she would not address it. I told her that Midland Funding has not provided me enough info to sufficiently state whether or not I owe the debt and she asked me what I was wanting them to show me. I said a signed contract or agreement, where the debt initiated at, what it was used for etc. The attorney had none of that and she got ticked at him (lol)...she said shes dismissing it and that he had better start coming prepared instead of wasting the courts time. So i am here to encourage fellow Floridians- stand your ground! They do NOT have what they need to prove the debt is yours! Thank you to you all!  

GREAT!!! What did you do exactly? Please help.