Small Claim Complaint from Midland Funding in NY/NH

[jlp1988]

Hello! I came here hoping that someone will be able to clarify things for me and lead me in the best direction. I received a letter from NH Circuit Court with a small claim complaint on behalf of Midland Funding LLC. The letter was sent to my mothers house in NH. She put it in an envelope and sent it to me. I live in New York (Ulster County). I have lived here for almost 9 years, and the debt I am being sued over is from a dental credit card which was used in New York. I have not received any letters to my home address or my PO Box, and this is the first letter my mother received. On the complaint, where the defendant's name is, it states the residence address as my mothers address in NH. I don't know why.

I am vaguely familiar (not familiar enough) with this process, I was sued by Bank of America in 2018. I ignored the letters because I was naive and I assumed they were a scam. I did not respond, the judgement was filed against me, and they got permission to garnish my wages. They have not garnished my wages because I have been paying them in installments through the sheriff's office and they seem to accept that. It's a struggle to keep up with - If they garnish my wages for that I will have to pay $280 + per month. I pay as much as I'm able to and hope they don't finally end up garnishing.

 

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.)

Niederman, Stanzel & Lindsey. (Based in Manchester, NH)

3. How much are you being sued for?

$1195.24

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

Dental First Financing / COMENITY CAPITAL BANK

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

My mother recieved a letter, and forwarded it to me. I have a feeling that does not count as being served. I am 30 years old and have not lived with my parents for 12 years. I have not lived in the state of NH for 10 years.

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

Mail

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

NEW HAMPSHIRE

All writs and other processes shall be served by giving to the defendant or leaving at his abode an attested copy thereof, except in cases otherwise provided for. Source. RS 183:2. CS 194:2. GS 204:2. GL 223:2. 1883, 22: 1. PS 219:2. 1893, 67:6. PL 331:2. RL 387:2. RSA 510:2. 1971, 179:10, eff. Aug. 10, 1971.

It was not given to me or left at my house.

NEW YORK
Personal service upon the state shall be made by delivering the summons to an assistant attorney-general at an office of the attorney-general or to the attorney-general within the state.
As far as I know, no.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? 

I have not made any payments on this debt. I don't believe I have ever spoken with them on the phone, but I did recieve offer letters to my PO box, and I did create an account on their website.

9. What state and county do you live in?

Ulster County, NY. The letter was delivered to Merrimack County, NH.

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

According to the Statement of Consumer debt (sent with the complaint) my last payment was made on 10/26/2016.

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

I believe in 2015.

12. What is the SOL on the debt? To find out:

Statute of Limitations on Debts In NY 6 years. In NH 3 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).

I was unable to get this info on their website, and calling hours are not now so I will have to wait til business hours to call. The letter says I am required to file a response on the courts website by 01/30/19.

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 disputing after being sued 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?

I need to respond by 01/30/19. The plaintiff complains that the defendant owes the plaintiff $1195.24 After defendant established the used the account, the creditor sent statements of the activity and balance. Defendant failed to pay the stated amount. Plaintiff sues upon account stated the recover the outstanding balance.

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

There is a statement of consumer debt submitted by their attorney with the basis "information provided by my client". It includes the account number, date of last payment, amount of last payment, debt principal amount. That's the only provided exhibit.

18.  How did you find out about this site?

I've been researching online and reading other people's questions about Midland Funding.

 

I'm devouring all the info I can in order to make the best move. Any advice at all would be greatly appreciated! Thank you!

[Clydesmom]

4 hours ago, jlp1988 said:

I'm devouring all the info I can in order to make the best move. Any advice at all would be greatly appreciated! Thank you!

Your best move is to head straight to a Consumer Attorney and get them to take the case.  Midland has given you a GOLD PLATED defense:  they violated the FDCPA by filing in the wrong state/jurisdiction.  This isn't even a gray area.  Most likely the lawyer will take the case on contingency because Midland will be paying their fees as part of their settlement to walk away from this.

[fisthardcheese]

I agree that you should contact a consumer attorney who does FDCPA work.  If you have any past statements from the Comenity account that were sent to your current NY address or any other mail from the Comenity account that shows your correct address on it, that would be very good proof and I would let the attorney know you have this evidence when you talk to them.