Being Sued by Midland Funding LLC - Texas

[texasnavyvet]

1. Who is the named plaintiff in the suit?   Midland Funding, LLC

2. What is the name of the law firm?   Katharine Allen, Attorney for Midland Funding, LLC, Houston, TX

3. How much are you being sued for? $1,673.85 along with all costs of suit and all other relief, in law and equity, to which Plaintiff may be entitled.

4. Who is the original creditor? Credit One Bank

5. How do you know you are being sued? Received summons

6. How were you served? In person

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I honestly cannot recall.

9. What state and county do you live sued? Texas, Coryell County

10. When is the last time you paid on this account? They say August 2017

11. When did you open the account?  2014

12. What is the SOL on the debt?  4 years

13. What is the status of your case? I was served.  In the process of writing a response.

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? No

16. How long do you have to respond to the suit?  July 18th.

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

• Affidavit of Asia DelCastillo relating to damages and business records; notarized by XXX, State of Minnesota
• Copy of credit card states dated March 06, 2018 to April 05,2018 and September 06, 2017 to October 5, 2017
• Bill of Sale and Assignment of Accounts and Receivables from Sherman Originator III LLC to Midland Funding LLC
• Document titled Exhibit A Account Schedule listing the electronic file name of account and receivables sold/assigned between parties in aforementioned Bill of Sale
• What appears to be a computer generated document with account information that has AccountNumber, AcctID, Date of Birth, and COL1 lines blacked out partially or completely (presumably a print out of the electronic file listed in the Bill of Sale)
• Bill of Sale and Assignment of Receivables from Credit One Bank, N.A. to MHC Receivables, LLC
• Document titled Exhibit A Account Schedule listing the electronic file name of the receivables sold/assigned between Credit One and MHC Receivables, LLC
• Bill of Sale and Assignment of Accounts from Credit One Bank, N.A. to MHC Receivables, LLC
• Document titled Exhibit A Account Schedule listing the electronic file name of account sold/assigned between Credit One and MHC Receivables, LLC
• Bill of Sale and Assignment of Receivables from MHC Receivables, LLC to FNBM, LLC
• Document titled Exhibit A Account Schedule listing the electronic file name of receivables sold/assigned between MHC Receivable, LLC and FNBM, LLC
• Bill of Sale and Assignment of Receivables from FNBM, LLC to Sherman Originator III LLC
• Document titled Exhibit A Account Schedule listing the electronic file name of receivables sold/assigned between FNBM, LLC to Sherman Originator III, LLC
• Bill of Sale and Assignment of Accounts from MHC Receivables, LLC to Sherman Originator, III, LLC
• Document titled Exhibit A Account Schedule listing the electronic file name of account sold/assigned between MHC Receivable, LLC to Sherman Originator III, LLC
• Document titled Exhibit G Affidavit of Credit One Bank, N.A., FNBM, LLC, and MHC Receivables, LLC, duly sworn and signed by VP of Collections, and notarized by XXX, State of Nevada
• Certificate of Conformity signed by Credit One in-house councel
• Document titled Exhibit F Affidavit of Sale of Accounts by Sherman Originator III LLC, signed by Vice President of Company, and notarized by XXX, State of South Carolina
• Certificate of Conformity signed by an Attorney at Law, State of South Carolina

 

I edited my original post.  Hopefully this helps make is easier to read.

Need to get my answers/affirmative defenses completed.  I don't want to wait till the last minute.  Any assistance anyone can off of this would be greatly appreciated. 

My other question is too, should I file a motion to have Asia DelCastillo's affidavit thrown out? At what point do I do this and on what grounds?  Just something I have read in other posts on this site and believe it is applicable in my case.

Thanks!!

 

Edited July 8, 2019 by texasnavyvet
Put Post In Better/Proper Format

[BV80]

@texasrocker is from your state.  For the time being, check out this thread on arbitration.

 

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

[texasrocker]

10 hours ago, texasnavyvet said:

Hello all.  I hope I am posting in the right forum, if not please direct me, or move my post. 

I spent most of yesterday and last night reading numerous posts about being sued by Midland Funding, LLC...

Technically you should have posted in  Is There a Lawyer in the House since you have already been served.   

Their supposed credentials are irrelevant.  If it walks like a robo-signer and quacks like a robo-signer then that is all it is, plain and simple. 

You seem to have gotten so consumed and tangled up in researching these idiots that you overlooked telling us the amount you are being sued for which is quite relevant.

[texasnavyvet]

On 7/6/2019 at 8:26 AM, texasrocker said:

Technically you should have posted in  Is There a Lawyer in the House since you have already been served.   

Their supposed credentials are irrelevant.  If it walks like a robo-signer and quacks like a robo-signer then that is all it is, plain and simple. 

You seem to have gotten so consumed and tangled up in researching these idiots that you overlooked telling us the amount you are being sued for which is quite relevant.

You are correct , I did get consumed.  I apologize.  The amount in question is $1,673.85.  I understand I have to answer to the summons, I just want to make sure I give the with the right responses to those questions and list the correct affirmative actions.  You or anybody else's assistance or direction in this matter would be greatly appreciated.  Thank you.

[PLAY MAKER]

You have lost .

[texasnavyvet]

29 minutes ago, PLAY MAKER said:

You have lost .

Can you say why you say that. Just curious.

[PLAY MAKER]

What city are you in?

[BV80]

1 hour ago, texasnavyvet said:

Can you say why you say that. Just curious.

Pay no attention to @PLAY MAKER.   He shows up every once in a while to spout nonsense.  He never provides anything of substance.

[PLAY MAKER]

Everybody, wants help.The problem is getting the right help. The affidavits by the debt buyer with attached purported business records, are all easily be defeated. No one here has a clue.

 

[BV80]

17 minutes ago, PLAY MAKER said:

Everybody, wants help.The problem is getting the right help. The affidavits by the debt buyer with attached purported business records, are all easily be defeated. No one here has a clue.

 

Wow!  Tell that to all the people we’ve helped.  And tell it to the TX appeals courts who ruled that JDB affidavits were sufficient.  

You are the one with no clue.

[texasnavyvet]

7 hours ago, BV80 said:

Wow!  Tell that to all the people we’ve helped.  And tell it to the TX appeals courts who ruled that JDB affidavits were sufficient.  

You are the one with no clue.

Don't know about what happened or has happened in the past with the other poster.  Not trying to get between the bickering.  Just looking for guidance on the verbiage I should use in my response and at what point and on what grounds should I fill a motion to have the affidavit dismissed.

Just to clarify BV80, you meant insufficient above correct?

Thanks!!!

 

[BV80]

19 minutes ago, texasnavyvet said:

Don't know about what happened or has happened in the past with the other poster.  Not trying to get between the bickering.  Just looking for guidance on the verbiage I should use in my response and at what point and on what grounds should I fill a motion to have the affidavit dismissed.

Just to clarify BV80, you meant insufficient above correct?

Thanks!!!

 

No.  I meant “sufficient.”   There are TX courts that have that JDBs can authenticate the business records of an OC.  For example:

But, "a record may be `made' by a business although it was initially authored by a different business." Simien v. Unifund CCR Partners, 321 S.W.3d 235, 244 (Tex.App.-Houston [1st Dist.] 2010, no pet.).Personal knowledge by a third party of the procedures used in preparing the original documents is not required when the documents are incorporated into the business of the third party, are relied upon by the third party, and there are other indicators of reliability. Id. 

[texasnavyvet]

8 minutes ago, BV80 said:

No.  I meant “sufficient.”   There are TX courts that have that JDBs can authenticate the business records of an OC.  For example:

But, "a record may be `made' by a business although it was initially authored by a different business." Simien v. Unifund CCR Partners, 321 S.W.3d 235, 244 (Tex.App.-Houston [1st Dist.] 2010, no pet.).Personal knowledge by a third party of the procedures used in preparing the original documents is not required when the documents are incorporated into the business of the third party, are relied upon by the third party, and there are other indicators of reliability. Id. 

Thank you for the clarification.  I went back and reread your response to play maker and realized I misread it earlier when I was looking at it from my phone.  So is there anyway to determine which TX courts those are?

[BV80]

5 minutes ago, texasnavyvet said:

Thank you for the clarification.  I went back and reread your response to play maker and realized I misread it earlier when I was looking at it from my phone.

I’m glad to see I’m not the only person who does that on occasion.  ?

[texasnavyvet]

I hope I have redacted all the right information.  This is what I was served with on July 4th.

Midland Funding LLC.pdf

[Robby8900]

8 hours ago, texasnavyvet said:

I hope I have redacted all the right information.  This is what I was served with on July 4th.

Midland Funding LLC.pdf 2.44 MB · 3 downloads

Do you intend to answer with a general denial of all alleged claims, along with a MTC,  and dismiss, or in alternative stay. Including a demand to arbitrate.

[Robby8900]

20 hours ago, PLAY MAKER said:

You have lost .

 Your wrong. Why don't you explain your reasoning. 

[texasnavyvet]

56 minutes ago, Robby8900 said:

Do you intend to answer with a general denial of all alleged claims, along with a MTC,  and dismiss, or in alternative stay. Including a demand to arbitrate.

This is what I am not not certain about and seeking guidance on. What is your opinion if I may ask?

[Robby8900]

1 hour ago, texasnavyvet said:

This is what I am not not certain about and seeking guidance on. What is your opinion if I may ask?

My suggestion if it were me personally, would be to file an answer with a general denial of all alleged claims, asserting a ''Affirmative Defense'' section on the answer stating: lack of subject matter jurisdiction due to an underlying contractual arbitration clause. I would send out today a notice to OP  demanding arbitration pursuant the written agreement, which replaces both of the parties rights to litigate in court before a judge or jury. Along with filing the answer, i would file a MTC including a copy of the card agreement as exhibit ''A'' and your notice demand for arbitration as exhibit ''B''.

[KYgirl95]

@Robby8900 I've read in these threads that it's best to wait on filing an MTC until it's granted by the judge. 

[BV80]

47 minutes ago, Jaimehamm said:

@Robby8900 I've read in these threads that it's best to wait on filing an MTC until it's granted by the judge. 

The judge can’t grant the motion if you don’t file it.

[texasnavyvet]

Can I get a review of the attached document and get opinions if looks ok to file?  My response is due by Thursday and I work 7:30am - 5:30pm during the week.  However, I am off tomorrow and would like to make sure it gets filed with the court.

Also, do I or should I file a MTC for arbitration with my response or can I file it at a later date, or do I wait for a response from the plaintiff?  I know I need to notify the JDB that I am demand to arbitrate in accordance with the credit card agreement.  Can this notification be sent electronically via email since the lawyer's office provided it in their original petition and I am listing it in my response?

Thanks for all your assistance.  It is greatly appreciated.

 

Lawsuit Answers.doc

[Robby8900]

7 hours ago, texasnavyvet said:

 

Can I get a review of the attached document and get opinions if looks ok to file?  My response is due by Thursday and I work 7:30am - 5:30pm during the week.  However, I am off tomorrow and would like to make sure it gets filed with the court.

Also, do I or should I file a MTC for arbitration with my response or can I file it at a later date, or do I wait for a response from the plaintiff?  I know I need to notify the JDB that I am demand to arbitrate in accordance with the credit card agreement.  Can this notification be sent electronically via email since the lawyer's office provided it in their original petition and I am listing it in my response?

Thanks for all your assistance.  It is greatly appreciated.

 

Lawsuit Answers.doc 47 kB · 0 downloads

Needs some tweaking. I can show an  example of all you need. Keep it simple.

EXAMPLE OF ANSWER AND AFFIRMATIVE DEFENSE.pdf

[Robby8900]

10 minutes ago, Robby8900 said:

 

Needs some tweaking. I can show an  example of all you need. Keep it simple.

EXAMPLE OF ANSWER AND AFFIRMATIVE DEFENSE.pdf 91.21 kB · 0 downloads

Your prayer for relief comes in your MTC and you don't have to file the MTC with your answer if you don't want to. You may wait a week or so to file MTC. Yes you can email the attorney a demand for arb, do so in pdf form.

[texasrocker]

8 hours ago, texasnavyvet said:

Can I get a review of the attached document and get opinions if looks ok to file?  My response is due by Thursday and I work 7:30am - 5:30pm during the week.  However, I am off tomorrow and would like to make sure it gets filed with the court.

Also, do I or should I file a MTC for arbitration with my response or can I file it at a later date, or do I wait for a response from the plaintiff?  I know I need to notify the JDB that I am demand to arbitrate in accordance with the credit card agreement.  Can this notification be sent electronically via email since the lawyer's office provided it in their original petition and I am listing it in my response?

Thanks for all your assistance.  It is greatly appreciated.

Your answer is fine in Texas courts.  It does not "need tweaking."  Do not file it electronically; make two copies and deliver it to the court in person and ask them to file stamp one copy for you to keep.

20 minutes ago, Robby8900 said:

Your prayer for relief comes in your MTC and you don't have to file the MTC with your answer if you don't want to. You may wait a week or so to file MTC. Yes you can email the attorney a demand for arb, do so in pdf form.

What?  This may be relevant in Ohio courts but is irrelevant in Texas and nothing needs to be in .pdf form.