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Sued for Breach of Contract in Washington


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I was served with a summons yesterday. It alleges I breached contract by not paying my debt of $831. 

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.)

Gordon, Aylworth, & Tami, P.C.

3. How much are you being sued for?

831.20

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

Credit One Bank

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

Correct

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

In person

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

Process Service Requirements by State - Summons Complaint

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?

Whatcom County, Washington

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

May 2017

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

February 2017

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

Statute of Limitations on Debts

6 years

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B)looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Suit is served. No other statuses yet

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 was served yesterday. I have 18 days. 

BREACH OF CONTRACT

1.

Plaintiff is a limited liability company, which for good and valuable consideration purchased Defendant’s Credit One Bank, N.A. Credit card account and contract and all of the associated rights thereunder.

2.

Plaintiff has satisfied the bonding requirements and is a duly licensed collection agency pursuant to RCW Chapter 19.16. A true copy of said license is attached hereto.

3.

Defendant, an individual residing in Whatcom County Washington, entered into a contract with Credit One Bank, N.A. for a credit card. The credit card was issued to the  Defendant under the account number ************7862.

4.

Credit One Bank, N.A. supplier the credit card to Defendant subject to an agreement to repay all amounts to the account plus all associated costs and fees.

5.

Defendant thereafter used the credit card and became indebted to Credit One Bank, N.A..

6.

Credit One Bank, N.A. performed its obligations under the terms of the contract.

7. 

Defendant breached the contract by failing to make payment(s) as agreed. As a result, Defendant’s credit card account was charged off for delinquency on February 25, 2018.

8.

As a result of Defendant’s breach, Defendant is indebted to Plaintiff in the sum of $831.20, plus interest at the state statutory rate of 12% per annum from date of judgment until paid. Plaintiff is also entitled to actual costs and disbursements, with interest thereon at the state statutory rate of 12% per annum from the date of judgment until paid.

WHEREFORE, Plaintiff prays for judgment against Defendant as follows:

1. The sum of $831.20, plus interest at the rate of 12% per annum from date of judgment until paid;

2. Plaintiff’s costs and disbursements incurred herein, with interest thereon at the rate of 12% per annum from the date of judgment until paid.

 

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.

They did not attach additional evidence.

18.  How did you find out about this site?

Google.

I feel I should note I have zero experience with courts or crafting answers. I truly would appreciate any advice relating to answering, waiving fees, forcing arbitration, and whether I should simply seek settlement instead. 

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7 hours ago, Shufu said:

I truly would appreciate any advice relating to answering, waiving fees, forcing arbitration, and whether I should simply seek settlement instead. 

Unfortunately Credit One is one of the few creditors that has a carve out for small claims cases.  If your suit is in WA Small Claims court or the equivalent you won't be able to MTC arbitration.  

Because you can settle at any time I would at least fight the suit and defend it.  That gives you time to save a decent lump sum amount to offer and make it go away if you need to.

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1 hour ago, Clydesmom said:

Unfortunately Credit One is one of the few creditors that has a carve out for small claims cases.  If your suit is in WA Small Claims court or the equivalent you won't be able to MTC arbitration.  

Because you can settle at any time I would at least fight the suit and defend it.  That gives you time to save a decent lump sum amount to offer and make it go away if you need to.

The suit is being pursued through the District Court of Whatcom County. I think that is different but I’m not completely sure.

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1 hour ago, Robby8900 said:

District court is different and you can file a MTC

That’s great news. Are there any templates for this you’d recommend? I’m currently drafting my answer and notice of appearance, really not sure if I’ve done it right. It’s going to cost nearly a quarter of their alleged debt owed to simply file the answer, notice of appearance, and motion to compel. It seems risky. If I lose that’s money down the drain. 

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On 6/23/2019 at 12:52 PM, Robby8900 said:

If you want you can post your docs here for everyone to take a look , and for more information i suggest:

 

Thanks for this, this thread is great. Here's what I have so far regarding the answer and notice of appearance:

 

District Court of Washington, County of Whatcom

Plaintiff:

No. -------------

MIDLAND FUNDING, LLC,

ANSWER AND AFFIRMATIVE
DEFENSES

v.
Defendant:
------------

I. Answer
Defendant answers the complaint as follows:
1. I admit the statements in paragraph numbers N/A.
2. I deny the statements in paragraph numbers 1, 2, 3, 4, 5, 6, 7, and 8 except for the following statements:

N/A

3. I lack knowledge about the truth and so deny the statements in paragraph number(s) N/A.

II. Affirmative Defenses

My other defenses are:
[x] General Denial: I deny the allegations in the Complaint
Plaintiff lacks standing and does not have authority to bring this lawsuit.
I am eligible for Charity Care for my hospital debt.
I was on Washington Apple Health (Medicaid) at the time I received some or all of the medical
services at issue in this lawsuit and the medical provider improperly billed me. See WAC 182-502-
0160.
I did not receive a copy of the Summons and Complaint

I received the Summons and Complaint, but service was not correct as required by law.
I do not owe this debt.
I am a victim of identity theft or mistaken identity. I am not responsible for this debt.
I have paid all or part of the debt.
I disagree with the amount of the debt/the amount is incorrect.
Statute of limitations (the time has passed to sue on this debt).
This debt was discharged in bankruptcy.
The collateral (property) was not sold at a commercially reasonable price.
Unjust enrichment (the amount demanded is excessive compared with the original debt).
Violation of the duty of good faith and fair dealing.
Unconscionability (the contract is unfair.)
Laches (Plaintiff has excessively delayed in bringing this lawsuit to my disadvantage).
Defendant is in the military.
DATED this _________ day of ________________, 20___.

___________________________________________
(Signature)
Name: ----------------
Address: ---- ----- ----- ----
-------------------
Telephone: -----------

-------------------------------------------------------------------------------------------------------------------------------------------------------------

 

District Court of Washington, County of Whatcom

Plaintiff:

No. ----------

MIDLAND FUNDING, LLC,

CERTIFICATE OF SERVICE

v.
Defendant:
--------------

I certify under penalty of perjury under the laws of the State of Washington that, on the date stated
below, I did the following:
On the day of , 20 , I [strike out what doesn’t apply]
mailed by regular U.S. Mail, postage prepaid / hand delivered a true copy of the Notice of Appearance and
Answers and Affirmative Defenses
[name of paper(s) served] in the above-entitled matter to MIDLAND FUNDING, LLC, [Name of Plaintiff
or Plaintiff’s Attorney] at the following address:
Dated:

Signature

Print or Type Name
Place signed

-----------------------------------------------------------------------------------------------------------------------------------------------------------------------

 

District Court of Washington, County of Whatcom

Plaintiff:
MIDLAND FUNDING, LLC,
v.
Defendant:
----------------

No. -----------
NOTICE OF APPEARANCE

TO: MIDLAND FUNDING, LLC,, Plaintiff or Attorney for Plaintiff
AND TO: Clerk of the Court

The undersigned enters an appearance in this action, and demands notice of all further proceedings. The
Clerk of the Court and the opposing party will be informed of any change in address. Any notices may be sent
to:
[You may list an address that is not your residential address where you agree to accept legal documents.]
Service Address:
------------------------------
-----------------------------

Dated:

Signature of Defendant
--------------------
Print or Type Name

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22 hours ago, Shufu said:

That’s great news. Are there any templates for this you’d recommend? I’m currently drafting my answer and notice of appearance, really not sure if I’ve done it right. It’s going to cost nearly a quarter of their alleged debt owed to simply file the answer, notice of appearance, and motion to compel. It seems risky. If I lose that’s money down the drain. 

There is a chance, though no guarantee, that if Midland follows their usual procedure, you might be able to settle with them by getting a dismissal with prejudice of the suit plus your costs paid back to you.  This can happen if the judge grants your MTC, you file the JAMS case, and then Midland refuses to arbitrate and becomes stuck between a court order to arbitrate and the court rules of requiring your agreement to dismiss the case.  That leverage can be used for the settlement scenario I mention.

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1 hour ago, fisthardcheese said:

There is a chance, though no guarantee, that if Midland follows their usual procedure, you might be able to settle with them by getting a dismissal with prejudice of the suit plus your costs paid back to you.  This can happen if the judge grants your MTC, you file the JAMS case, and then Midland refuses to arbitrate and becomes stuck between a court order to arbitrate and the court rules of requiring your agreement to dismiss the case.  That leverage can be sued for the settlement scenario I mention.

This is promising. Is the chance any lower or higher for AAA? That’s what’s stated for arbitration in my card agreement; I read this association offers lower fees for the Plaintiff. Still, it seems like a loss on their part to pursue arbitration on an $831 debt, when they’ve already paid to file, and will have to pay nearly a grand to enter into arbitration. So much of this process seems like intimidation. 

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22 minutes ago, Shufu said:

This is promising. Is the chance any lower or higher for AAA? That’s what’s stated for arbitration in my card agreement; I read this association offers lower fees for the Plaintiff. Still, it seems like a loss on their part to pursue arbitration on an $831 debt, when they’ve already paid to file, and will have to pay nearly a grand to enter into arbitration. So much of this process seems like intimidation. 

It doesn't matter which one.  Midland won't arbitrate.

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1 hour ago, fisthardcheese said:

It doesn't matter which one.  Midland won't arbitrate.

Awesome, I’m going to file my answer, notice of appearance, and cert. of service on Friday. I read on another post that it’s important to put in the affirmative defense, under “Other”, that litigating the debt through the courts is inadmissible, and should be pursued under arbitration. Something about leaving it out of the answer waives the defendant’s right. 

I don’t think I’ll be able to file a MTC for at least a week after that, as it’s 120 per filing here. Looked into fee waivers for filing and it only has documentation for starting a case. Is it worth attempting to get the fee waiver? 

 

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14 minutes ago, Shufu said:
 

Awesome, I’m going to file my answer, notice of appearance, and cert. of service on Friday. I read on another post that it’s important to put in the affirmative defense, under “Other”, that litigating the debt through the courts is inadmissible, and should be pursued under arbitration. Something about leaving it out of the answer waives the defendant’s right. 

I don’t think I’ll be able to file a MTC for at least a week after that, as it’s 120 per filing here. Looked into fee waivers for filing and it only has documentation for starting a case. Is it worth attempting to get the fee waiver? 

 

Why don't you draft your own documents, (answer and MTC). Should only be like 20-30 dollars to file a motion, the answer should not cost anything.

 

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18 minutes ago, Shufu said:

Awesome, I’m going to file my answer, notice of appearance, and cert. of service on Friday. I read on another post that it’s important to put in the affirmative defense, under “Other”, that litigating the debt through the courts is inadmissible, and should be pursued under arbitration. Something about leaving it out of the answer waives the defendant’s right. 

I don’t think I’ll be able to file a MTC for at least a week after that, as it’s 120 per filing here. Looked into fee waivers for filing and it only has documentation for starting a case. Is it worth attempting to get the fee waiver? 

 

The ONLY affirmative defense I would use if it was me is "Lack of Subject Matter Jurisdiction:  The underlying contract which is the basis of Plaintiff's allegations contains a private arbitration clause which the Defendant has chosen to exercise. Therefore, this Court is the improper venue and lacks subject matter jurisdiction over this dispute."

When you file your answer, ask the clerk about a fee waiver, if in fact there are fees that high (or at all).

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3 hours ago, Robby8900 said:

Why don't you draft your own documents, (answer and MTC). Should only be like 20-30 dollars to file a motion, the answer should not cost anything.

 

I’ll start over tonight when I get home, it’s probably for the best to do it myself and get the experience. 

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5 hours ago, fisthardcheese said:

The ONLY affirmative defense I would use if it was me is "Lack of Subject Matter Jurisdiction:  The underlying contract which is the basis of Plaintiff's allegations contains a private arbitration clause which the Defendant has chosen to exercise. Therefore, this Court is the improper venue and lacks subject matter jurisdiction over this dispute."

When you file your answer, ask the clerk about a fee waiver, if in fact there are fees that high (or at all).

Thank you Fisthardcheese! I appreciate the loads of advice offered. I’ll edit my affirmative defense once I rewrite my drafts. I think I may have been confused regarding the court fees, it looks like they only apply to initiating a Whatcom County DC case; there’s no information about answering so I’m assuming it’s free like you said. Filing a motion will cost $25. 

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2 hours ago, Robby8900 said:

 Here is a example of how you may draft your own.

 

John DoeAnswear and Affirmitive Defences.pdf 61.78 kB · 3 downloads

Robby8900, 

Thanks for this resource, I compared this with Whatcom County's examples. Here's what I came up with.

ANSWER REDAC.docx CERTIFICATE OF SERVICE REDAC.docx NOTICE OF APPEARANCE REDAC.docx

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2 hours ago, Shufu said:

Nice, however the certificate of service doesn't have to have all the headings, it can just be page two under the answer as shown in my example, and it doesn't have to have under the penalty of perjury stuff. .

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21 minutes ago, Robby8900 said:

Nice, however the certificate of service doesn't have to have all the headings, it can just be page two under the answer as shown in my example, and it doesn't have to have under the penalty of perjury stuff. .

Awesome, made the changes per your advice. This may be trivial, but on the bottom with the page number, would I still keep the subject as "Actions and Affirmative Defenses Page 2"? Or is it only admissible with the subject "Certificate of Service Page 2"?

I may go ahead and file these tomorrow, if it's free or can be waived, and work on the MTC and file that on Friday. It seems a bit more in depth. I've begun filling out the form for AAA but it's my understanding to turn this in after the MTC has been granted. 

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2 hours ago, Shufu said:

Awesome, made the changes per your advice. This may be trivial, but on the bottom with the page number, would I still keep the subject as "Actions and Affirmative Defenses Page 2"? Or is it only admissible with the subject "Certificate of Service Page 2"?

I may go ahead and file these tomorrow, if it's free or can be waived, and work on the MTC and file that on Friday. It seems a bit more in depth. I've begun filling out the form for AAA but it's my understanding to turn this in after the MTC has been granted. 

Not necessary to put any thing on the bottom and wouldn't worry about filling out AAA paperwork yet. these are y suggestion not legal advice as ii am not an attorney. The answer will be free to file. 

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4 hours ago, Shufu said:

Awesome, made the changes per your advice. This may be trivial, but on the bottom with the page number, would I still keep the subject as "Actions and Affirmative Defenses Page 2"? Or is it only admissible with the subject "Certificate of Service Page 2"?

I may go ahead and file these tomorrow, if it's free or can be waived, and work on the MTC and file that on Friday. It seems a bit more in depth. I've begun filling out the form for AAA but it's my understanding to turn this in after the MTC has been granted. 

Dont even mess with AAA stuff until you go to court and your MTC is granted.  You will just confuse yourself, add unnecessary work all at once and potentially create extra steps for no reason.  Court stuff FIRST, then arbitrate only after the judge orders it.

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