rhonda352

FL - What steps to take as defendant against Midland Funding LLC

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FLORIDA. I am being sued by Midland Funding, LLC for credit card debt claimed to have been purchased from Synchrony Bank. The complaint was filed 12/27/2017, I answered the summons 1/27/2018 with an "Answer & Affirmative Defense". I now know, I should have demanded arbitration, so I now must to continue from this point. In my demand, I reserved the right to file more affirmative defenses in the future. Is it possible I may use the reserve to now file arbitration, or have I already given up the right to do so?  The credit card agreement with Synchrony states the cost for arbitration will be paid by Synchrony, should I prevail in the claims against them. I am not certain the case would be dropped by Midland due to the cost they "might incur" for arbitration. Filed on 6/20/2019 (17 months later) was an answer from the Midland representative, denying the affirmative defense and demanding strict proof.
Midland Funding, LLC, supposedly purchased my credit card debt for pennies on the dollar. Why would I owe them more than they paid for the debt? I was not notified by Synchrony, as required by law, within 30 days of the sale of my debt. The amount of the claim is over $7400 plus the fees associated with the case. I would estimate a total in access of $8000.
FLORIDA. I am being sued by Midland Funding, LLC for credit card debt claimed to have been purchased from Synchrony Bank. The complaint was filed 12/27/2017. In error and out of fear of a judgement being awarded against me, I answered the summons 1/27/2018 with an "Answer & Affirmative Defense". I now know I should have handled it differently, I have to continue from this point. The credit card agreement with Synchrony states the cost for Arbitration will be paid by Synchrony, should I prevail in the claims against them. I am not certain the case would be dropped by Midland due to the cost they "might incur" for arbitration. Filed on 6/20/2019 (17 months later) was an answer from the Midland representative, denying the affirmative defense and demanding strict proof.
Midland Funding, LLC, supposedly purchased my credit card debt for pennies on the dollar. Why would I owe more than they paid for the debt? I was not notified by Synchrony, as required by law, within 30 days of the sale of my debt. I did not enter into an agreement with Midland. The amount of the claim is over $7400 plus the fees associated with the case. I would estimate a total in access of $8000.
 
This my Affirmative Defense - 
1.  The Plaintiff failed to name the real party in interest. - Not really sure this applies - there were other authorized users of the account. However, not co-account holders.

2.  The Plaintiff failed to state a claim upon which relief can be granted. - I was never in an agreement with Midland. 

3.  Defendant was not notified by the Plaintiff of any assignment of the debt that is the subject of the Complaint. - I was not notified by Midland or Synchrony of the debt transfer, should I have included Synchrony in this statement?

4.  Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

 5.  Plaintiff's Complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide. - Midland did not state the amount of the purchase of the debt.

 6.  Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. - Synchrony doesn't have knowledge of the claim and Midland has not shown they have received the rights of the original credit card agreement.

 7.  The Plaintiff has not proven that they are authorized and licensed to collect claims for others in the State of Florida, solicit the right to collect or receive payment of a claim of another.

 8.  The Complaint fails to allege or prove that the Plaintiff is licensed and has procured a bond in the State of Florida as required per Title 33 Chapter 559 Part 6 of the Florida Statues

9.  Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. § 1692e (2) from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed.

 10. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff. - Because Midland states they paid Synchrony - my debt is paid in full. I didn't enter into an agreement with Midland to do it or to pay them back for doing it.  

11. Plaintiff's damages are limited to real or actual damages of actual cost paid or exchanged to alleged Original Creditor for the purported debt, for which Plaintiff failed to reference an account number in their Complaint. - Midland did not use an account number for reference of the original debt - also I would not owe them more than they paid for the debt.

12. Attorney Fees Not Recoverable 

13. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time. - I am hoping this will allow me to still be able to try arbitration.

At your request, I will send you a complete copy of the complaint and my answer so you will be fully aware my situation.

What are the steps I should take from this point? 

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If you want to use arbitration you'll have to file an amended answer to include arbitration as an affirmative defense. Check your court rules for how to go about doing that. 

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I am so lucky, I was hoping you would reply to my post. You have the knowledge, I seek. I will file the amended answer to include the demand for arbitration. I plan to file a Certificate of Service with the clerk stating it was mailed. I believe this will provide me protection for the service.  Do you think it would be helpful to also at that time request pre-trial discovery? 

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@rhonda352

Along with what has been suggested by @Harry Seaward, you can eliminate most of your defenses because they do not apply to your case.

 

13 minutes ago, rhonda352 said:

3.  Defendant was not notified by the Plaintiff of any assignment of the debt that is the subject of the Complaint. - I was not notified by Midland or Synchrony of the debt transfer, should I have included Synchrony in this statement?

Unless your state laws require the above, it is not applicable.

14 minutes ago, rhonda352 said:

4.  Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

Your cardmember agreement states that accounts can be sold or assigned.  If Midland could prove it purchased the account, then that’s the same as having an account with Midland.

15 minutes ago, rhonda352 said:

5.  Plaintiff's Complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide. - Midland did not state the amount of the purchase of the debt.

This is not required unless your state laws require it.

17 minutes ago, rhonda352 said:

6.  Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. - Synchrony doesn't have knowledge of the claim and Midland has not shown they have received the rights of the original credit card agreement.

If they provide a bill of sale or affidavit from Synchrony, then Synchrony knows it sold the account.

18 minutes ago, rhonda352 said:

10. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff. - Because Midland states they paid Synchrony - my debt is paid in full. I didn't enter into an agreement with Midland to do it or to pay them back for doing it.  

An agreement between Midland and Synchrony was strictly for the purchase of the debt so that Midland could collect.  Midland did not make an agreement to pay for the account and not hold you liable.

Accord and satisfaction only applies to the parties of an agreement.  You were not a party to the sale between Synchrony and Midland.  

It would only apply if you had already settled and paid the account.  

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BV80, thank you as well for your recommendations. It is required in FL there is 30 day notice to be given prior to the sale of the debt, so I will still include it in my amended affirmative defense, I will not include 4, 5, 6 or 10. In the purchase of the debt from Synchrony to Midland, is just the debt transferred or all the terms and conditions of the credit card agreement are also purchased? I am including for you a copy of the complaint and my old answer. I hope you can make some suggestions.

answer_and_affirmative_defense2.pdf 

midland complaint2.pdf

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37 minutes ago, rhonda352 said:

Midland Funding, LLC, supposedly purchased my credit card debt for pennies on the dollar. Why would I owe more than they paid for the debt?

What they paid is irrelevant.  They are contractually allowed to sue for the balance on the account and any costs of collections.

38 minutes ago, rhonda352 said:

I was not notified by Synchrony, as required by law, within 30 days of the sale of my debt.

FL Law used to require that.  No longer.  I believe it was a a couple of years ago they got rid of that.  @LawKittywas the one who pointed that out some time back.

Also, they don't have to prove your received the letter only that they sent one.  Producing a copy is sufficient for the court.

39 minutes ago, rhonda352 said:

I did not enter into an agreement with Midland.

You didn't have to.  As others have explained under basic contract law they bought the rights to your account and that includes being able to sue you for the balance owed whether you agree or not.

18 minutes ago, rhonda352 said:

Do you think it would be helpful to also at that time request pre-trial discovery? 

If you hope to get arbitration compelled the last thing you do is participate in the legal process because that is waiving your right to arbitrate.  It is one or the other not both.

1 minute ago, rhonda352 said:

It is required in FL there is 30 day notice to be given prior to the sale of the debt, so I will still include it in my amended affirmative defense

Not anymore.  

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Thank you Clydesmom. What law applies the law of 2017 when the complaint was filed or the laws of today? Do you know when the laws you refer to as "not anymore" were changed? Thanks again!
 

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4 hours ago, rhonda352 said:

I was not notified by Synchrony, as required by law, within 30 days of the sale of my debt.

Here is the law to which I believe you are referring.

559.715 Assignment of consumer debts.—This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.

It says the “assignee” (not the OC) must provide notice at least 30 days before attempting to collect the debt.  However, that’s a he said/she said situation.  You can claim it was not sent while they can claim it was sent.

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3 hours ago, rhonda352 said:

What law applies the law of 2017 when the complaint was filed or the laws of today?

The other possibility is what laws were in effect during the life of the account. What you're asking about is retroactivity or ex post facto, and it's unlikely to be a simple yes or no answer, and each state decides how it handles these things. In Arizona, for example, retroactivity is dependent upon weather the change in law is a procedural change vs. substantive change. One type (I don't remember which off the top of my head) is automatically retroactive and for the other type, Congress must specifically state within the new law that it is to be effective retroactively. Further complicating matters is the possibility that a law may not clearly be one type or the other. Without reading the law, I'm going to guess that a change in what is required from a debt buyer would be treated as a substantive law.

So,  if this is a path you want to go down, you have some homework to do on Google Scholar.

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10 minutes ago, Harry Seaward said:

The other possibility is what laws were in effect during the life of the account. What you're asking about is retroactivity or ex post facto, and it's unlikely to be a simple yes or no answer, and each state decides how it handles these things. In Arizona, for example, retroactivity is dependent upon weather the change in law is a procedural change vs. substantive change. One type (I don't remember which off the top of my head) is automatically retroactive and for the other type, Congress must specifically state within the new law that it is to be effective retroactively. Further complicating matters is the possibility that a law may not clearly be one type or the other. Without reading the law, I'm going to guess that a change in what is required from a debt buyer would be treated as a substantive law.

So,  if this is a path you want to go down, you have some homework to do on Google Scholar.

The amendment to the law occurred in 2010.   But unfortunately, in regard to the notice being sent, it’s a he said/she said.

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On 6/26/2019 at 3:57 PM, Clydesmom said:

What they paid is irrelevant.  They are contractually allowed to sue for the balance on the account and any costs of collections.

FL Law used to require that.  No longer.  I believe it was a a couple of years ago they got rid of that.  @LawKittywas the one who pointed that out some time back.

Also, they don't have to prove your received the letter only that they sent one.  Producing a copy is sufficient for the court.

You didn't have to.  As others have explained under basic contract law they bought the rights to your account and that includes being able to sue you for the balance owed whether you agree or not.

If you hope to get arbitration compelled the last thing you do is participate in the legal process because that is waiving your right to arbitrate.  It is one or the other not both.

Not anymore.  

There was recent case law that ruled that notice of assignment of the debt is not considered a condition precedent to filing a lawsuit. Many judges considered if they could produce a letter and state it was sent that it was good enough even before the case law but occasionally you could get a judge to want more proof. But now it isn’t a condition precedent. I don’t have the case at hand but there was one in the last few years that ruled that way. 

For pro se parties if you can do the arbitration method it still seems to have some success. Fighting in court is more difficult now but if you’re going to fight in court, demand a jury trial in your answer. Too many judges are creditor and bank friendly in Florida and will almost always rule for creditors. 

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3 hours ago, LawKitty said:

There was recent case law that ruled that notice of assignment of the debt is not considered a condition precedent to filing a lawsuit. Many judges considered if they could produce a letter and state it was sent that it was good enough even before the case law but occasionally you could get a judge to want more proof. But now it isn’t a condition precedent. I don’t have the case at hand but there was one in the last few years that ruled that way. 

Thank you for clarifying this.  I knew you had said something about this before but could not remember the details.

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