Got sued by midland funding llc( do I even have a chance of fighting them)

[Luvmybabas]

I was sued by Midland funding llc. I read this one post here and the guy almost had the same situation as me. He lives in Maryland I think. Basically, we got the  same papers from midland. He fought and won; however,  I'm here to ask you guys if you can help me. Should i fight in court or just settle? Im very stressed I got another lawsuit while still paying for another account they sued me for.

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

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.) It doesnt have a law firm just names of atty. in Richmond, Va.

3. How much are you being sued for?

1,129.00

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

5. How do you know you are being sued? (You were served, right?) Yes I received a summon from a deputy.

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Went to court the first summon and asked for bill of particulars.

9. What state and county do you live in? 

Chesapeake, VA.

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

It says on the summon last time I paid was Feb.16,2017.

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

Feb. 4,2014.

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

On the summon it says open endes account. So when I looked on the link you provided it says 6 yrs.

But im confused I had a lawyer for a different account before and he told me 5 yrs.

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).

Im supposed to go to trial June 9, 2020. Says pending.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I tried to call before when they first sent me the summon but they offered 900 and pay upfront. 

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').

I tried to dispute when I got summoned. But they said I would have to pay 900 that day. Thats why I went to court and asked for BILL OF PARTICULARS.

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 went to court the first time and ask them for Bill of particulars. So the judge ordered us to come back for a trial June 9 2020. This is what the BILL OF PARTICULAR SAYS:

1. On feb 4 2014 defendant open an account with the plaintiff's PREDECESSOR-IN-INTEREST, namely COMENITY BANK.

2. Defendant used account but failed to me on as agreed.

3.  On or about June 28, 2017 plaintiff purchased the right to pursue this claim from its predecessor-in- interests.

4.  Defendant has failed to satisfy this debt and therefore indebted to plaintiff in the amount of $1129.

5.  Attach here to are documents supporting planets above claim.

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 HAD NO CONTRACT BUT I KEEP HEARING THAT THEY DONT NEED TO HAVE IT IN VA. BUT IM NOT SURE AND I DONT KNOW WHICH WEBSITE I SHOULD LOOK TO FIND OUT WHAT EVIDENCE THEY NEED TO BRING IN COURT.

1. The first AFFIDAVIT they sent me that was attached to the summon had a DIFFERENT name pertaining as  a legal specialist midland credit management. After I asked for the Bill of particulars they gave me an affidavit same exact statement from this (legal specialist) but now its a DIFFERENT name. I just wanted to tell you but I dont know if it matters.

2. Portfolio level affidavit of sale by original creditor.

3. Certificate of conformity.

4. Billl of sale exhibit A: there are some blacked out words. I dont see my name or my account. On the bottom it just says comenity bank and midland fundint llc. When my account was bought. 

Exhibit 1 to bill of sale (asset schedule) 

It says # of charged accounts,  Aggregate unpaid balance, percent were all blacked out.

AFTER I SENT THEM GROUNDS OF DEFENSE. THEY SENT ME A HUGE ENVELOP FILLED WITH A LOT OF STATEMENTS FROM 2015-2017 SOME MONTHS AND TWO STATEMENTS WITH PRODUCT INFO. 

ALSO A PAPER THAT SAYS FROM COMENITY BANK : MY ACCOUNT WAS CLOSED AND CHARGED OFF. AND THEY SOLD IT TO MIDLAND FUNDING LLC. AS THE NEW OWNER THEY ARE ENTITLE TO COLLECT THE DEBT.

 

THANKS GUYS!!!  I Know this is a lot of information. But I am very delighted I found this website so I can ask people for their opinions. Because I had nobody to talk to about this. It seems like people are afraid to tell me if they got sued before.

 

 

 

 

18.  How did you find out about this site?

Another website

18. Read these two links:

Using Arbitration To Defend A Debt Collection Lawsuit

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

====================================================

============================================

By answering these questions, you will really get more help. If other people have more suggestions for questions, let me know.

[Brotherskeeper]

1 hour ago, Luvmybabas said:

AFTER I SENT THEM GROUNDS OF DEFENSE. THEY SENT ME A HUGE ENVELOP FILLED WITH A LOT OF STATEMENTS FROM 2015-2017 SOME MONTHS AND TWO STATEMENTS WITH PRODUCT INFO. 

Did you file an Answer to the Complaint with the court?

What were your "grounds of defense"? 

Is this a store branded Comenity Bank account? Do you have a copy of the 2016 or 2017 cardmember agreement? 

It appears that the 2017 Comenity agreements contain an arbitration provision. 

https://www.consumerfinance.gov/credit-cards/agreements/

 

 

[Luvmybabas]

Yes i disputed and asked for bill of particulars. Im knew to this and i didnt know what to exactly to write because I dont know what evidence they need in general district court but what I wrote on my ground of defense:

1. Deny. No original contract to support it.

2. Deny.  Does not show entire payment history.

3.  Deny.  Original contract that shows Midland funding LLC purchased the debt from comenity.  And  Witnesses who signed the documents.

4. Deny.  The plaintiff has failed to prove the defendant owes the debt.

5. Deny.  Detail description of each item and amount purchased.

 

I dont know if they need the original contract to sue me however they did show me a paper that says comenity sold my account to midland funding. And 2 monthly statements that showed a description of what was bought. I got the account in 2014. Its a va secret credit card.

[Clydesmom]

13 minutes ago, Luvmybabas said:

5. Deny.  Detail description of each item and amount purchased.

This one will NOT work.  You only have 6 months to dispute a charge and its validity under the fraud clause in the card agreement.  Once that 6 months lapses all charges are deemed valid.  What you purchased is between you and the merchant not you and the creditor.

13 minutes ago, Luvmybabas said:

1. Deny. No original contract to support it.

The courts know in a credit card case there is no signed contract involved.  Opening/using and paying on the account is sufficient to re-affirm the terms of the card agreement which then forms the contract.  

13 minutes ago, Luvmybabas said:

2. Deny.  Does not show entire payment history.

They don't need the entire payment history.  The final 6 months up to default is sufficient to show the accuracy of the balance.

Look in to using a motion to compel arbitration if you can.  Those defenses will not work in the conservative creditor friendly VA courts.

 

[Luvmybabas]

Thank you. At least you guys are helping me so I dont know look stupid in court. So i keep hearing arbitration how do I do that and what is it? 

[Luvmybabas]

My account has been sold to a third party debt collection(midland funding llc)

[BackFromTheDebt]

There is a link in the template you used to instructions for arbitration.

Here is the gist of it:

In order to protect themselves against class action suits, etc., many creditors use arbitration agreements.  That is a little too complicated for this post, but here is what it means for you:

Either party has the right to have the case heard by a private arbitrator instead of the court. This has been affirmed by the US Supreme Court.  For example, the Judge Judy show has Judy as a private arbitrator, which is why a TV judge can make legal rulings.

Consumer arbitration is expensive for the creditor.  

In general, Midland HATE consumer arbitration. 

What you need to do is to:

1. Get a copy of your arbitration agreement from the Consumer Financial Protection Board web site.

2. Check the arbitration terms.

3. File a Motion To Compel arbitration (MTC for short).  There are tips on how to do that in the thread.

4. The court will usually have some sort of hearing to grant your MTC.  You need to find out the rules for that court.  They vary state to state and sometimes different courts in the same state will have different rules.  

5. When you get the MTC granted, you file arbitraiton.  JAMS is preferable, but if the account only has AAA, then you file in AAA.

6. Make an offer to their attorney to dismiss the case with prejudice in both arbitraiton and court.

[Luvmybabas]

Thank you so much for all these information. So is it worth it for me to file for arbitration because my I go to court June 9th 2020. Which is in 2 weeks. And the debt is 1100, you think they wont proceed with the arbitration? And if they do how much you think I  would I have to pay. Sorry I am knew to this and Im glad I came here to you guys or else I would have been looking dumb in the courtroom. 

Thank you again

[Brotherskeeper]

 

Look for the Comenity Bank file and then locate the Victoria's Secret agreement PDF:

https://files.consumerfinance.gov/a/assets/Credit_Card_Agreements_2017_Q1.zip

 

Compelling and Staying Arbitration in Virginia

Here's the best explanation of arbitration:

 

 

[BackFromTheDebt]

I think the most you would have to pay in arbitration would be $250.

 

I have had cases where I filed, and then worked out an agreement to dismiss the case before I had to pay the $250.

[Luvmybabas]

Sorry Im trying to understand everything. So my court is in 2 weeks should I do it asap or wait when I go to court and tell the judge.

[Luvmybabas]

18 minutes ago, Brotherskeeper said:

 

Look for the Comenity Bank file and then locate the Victoria's Secret agreement PDF:

https://files.consumerfinance.gov/a/assets/Credit_Card_Agreements_2017_Q1.zip

 

Compelling and Staying Arbitration in Virginia

Here's the best explanation of arbitration:

 

 

So lets say they still go for this arbitration, do I still owe them 1100 or is it going to be more? Sorry for asking too many questions and thank you guys for your time.

[Brotherskeeper]

Here's an excerpt from the current Victoria's Secret arb section:

C. Arbitration provision
READ THIS ARBITRATION PROVISION CAREFULLY. IF YOU DO NOT REJECT THIS ARBITRATION PROVISION IN ACCORDANCE WITH PARAGRAPH C.1. BELOW, IT WILL BE PART OF THIS AGREEMENT AND WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY YOU OR WE WILL RESOLVE ANY CLAIM WHICH YOU OR WE HAVE AGAINST EACH OTHER NOW OR IN THE FUTURE.

1. Your Right to Reject: If you don’t want this Arbitration Provision (and any prior arbitration agreement between you and us ("Prior Arbitration Agreement")) to apply, you may reject it by mailing us a written rejection notice which gives the name of each Cardholder and contains a statement that you (both of you, if more than one) reject the Arbitration Provision of this Agreement. The rejection notice must be sent to us at Comenity Bank, PO Box 182422, Columbus, Ohio 43218-2422. A rejection notice is only effective if it is signed by you (all of you, if more than one) and if we receive it within thirty (30) calendar days after the date we first provide you with a credit card agreement or written notice providing you a right to reject this Arbitration Provision. Your rejection of this Arbitration Provision will not affect any other provision of this Agreement or your ability to obtain credit.

2. Parties Subject to Arbitration: Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean (a) Comenity Bank, any parent, subsidiary or affiliate of the Bank and the employees, officers and directors of such companies (the "Bank Parties"); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party.

3. Covered Claims: "Claim" means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, any prior agreement or account. "Claim" includes disputes arising from actions or omissions prior to the date any Card was issued to you, including the advertising related to, application for or approval of the Account. "Claim" has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). "Claim" does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the prohibition against class proceedings, private attorney general proceedings and/or multiple party proceedings described in Paragraph C.7 (the "Class Action Waiver"), the last sentence of Paragraph C.13 and/or this sentence); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

4. Starting an Arbitration: Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration.

5. Choosing the Administrator: "Administrator" means the American Arbitration Association ("AAA"), 120 Broadway, 21st Floor, New York, NY 10271, www.adr.org; JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com; or any other company selected by mutual agreement of the parties. If both AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. The arbitrator will be appointed by the Administrator in accordance with the rules of the Administrator. However, the arbitrator must be a retired or former judge or a lawyer with at least 10 years of experience. You get to select the Administrator if you give us written notice of your selection with your notice that you are electing to arbitrate any Claim or within 20 days after we give you notice that we are electing to arbitrate any Claim (or, if you dispute our right to require arbitration of the Claim, within 20 days after that dispute is finally resolved). If you do not select the Administrator on time, we may do it. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered, without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that is inconsistent with the Class Action Waiver.

6. Court and Jury Trials Prohibited; Other Limitations on Legal Rights: IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM. ALSO, YOUR ABILITY TO OBTAIN INFORMATION FROM US IS MORE LIMITED IN AN ARBITRATION THAN IN A LAWSUIT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.

7. Prohibition Against Certain Proceedings: IF YOU OR WE ELECT TO ARBITRATE A CLAIM: (1) NEITHER YOU NOR WE MAY PARTICIPATE IN A CLASS ACTION IN COURT OR IN CLASS-WIDE ARBITRATION, EITHER AS A PLAINTIFF, DEFENDANT OR CLASS MEMBER; (2) NEITHER YOU NOR WE MAY ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; (3) CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND (4) THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION.

8. Location and Costs of Arbitration: Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys’ and experts’ fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to.

9. Governing Law: This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA"), and not by any state arbitration law. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. The arbitrator may award any remedy provided by the substantive law that would apply if the action were pending in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award.

10. Right to Discovery: In addition to the parties’ rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request.

11. Arbitration Result and Right of Appeal: Judgment upon the arbitrator’s award may be entered by any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. However, if the amount of the Claim exceeds $50,000 or involves a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to either party exceeding $50,000, any party can, within 30 days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the Administrator. The panel shall reconsider anew any aspect of the initial award requested by the appealing party. The decision of the panel shall be by majority vote. Reference in this Arbitration Provision to "the arbitrator" shall mean the panel if an appeal of the arbitrator’s decision has been taken. The costs of such an appeal will be borne in accordance with Paragraph C.8. above.

12. Rules of Interpretation: This Arbitration Provision shall survive the repayment of all amounts owed under this Agreement, the closing of the Account, any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Provision, on the one hand, and the applicable arbitration rules or the other provisions of this Agreement, on the other hand, this Arbitration Provision shall govern. This Arbitration Provision replaces any Prior Arbitration Agreement.

13. Severability: If any portion of this Arbitration Provision, other than the Class Action Waiver, is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force. If a determination is made that the Class Action Waiver is unenforceable, only this sentence of the Arbitration Agreement will remain in force and the remaining provisions shall be null and void, provided that the determination concerning the Class Action Waiver shall be subject to appeal.

14. Special Payment: If (1) you submit a Claim Notice in accordance with Paragraph B above on your own behalf (and not on behalf of any other party); (2) we refuse to provide you with the relief you request; and (3) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $5,100 (plus any fees and costs to which you are entitled).

[Brotherskeeper]

11 minutes ago, Luvmybabas said:

Sorry Im trying to understand everything. So my court is in 2 weeks should I do it asap or wait when I go to court and tell the judge.

We know how hard this is to understand in such a short period of time. I am not a lawyer. If I was in your shoes, I'd prepare the motion to compel arbitration and stay the case and an affidavit with a copy of the entire Victoria's Secret agreement attached to it. I don't know your court rules for when/howyou have to file a motion.You will have to send a copy of everything you file with the court to the plaintiff's attorney. You can print out a demand form from AAA or JAMS to take to court to show the judge you're serious.

I'd read Fisthardcheese's arbitration thread a few times to understand it before attempting to draft anything. The basic motion to compel (MTC) template can be quickly modified for Virginia and for Comenity/Victoria's Secret. 

[Brotherskeeper]

26 minutes ago, Luvmybabas said:

So lets say they still go for this arbitration, do I still owe them 1100 or is it going to be more? Sorry for asking too many questions and thank you guys for your time.

First, you aren't asking too many questions. The answers to some of them are found in the links posted above.

If it's still the case, AAA will refuse to arbitrate a claim against Midland without a court order to compel them due to Midland not complying with AAA's rules. Filing a MTC arb is a strategy to use to get the case out of court. Because the debt buyer's costs are greater in arb than in court for a pro se case like yours, they often agree to a mutual walkaway settlement rather than go too far into arb. You would have to go all the way through the arb process to the arbitrator's award to know what you might owe. Midland would have to pay many thousands in arb fees to reach the award stage. It isn't likely they would find this a profitable way to operate. 

[Luvmybabas]

Thank you. Yes it is very hard especially if you are Asian still not good with vocabulary. Im still trying to understand some of the big words(sad but true) but im veery glad i found you guys. And I will try to  read more about the arbitration and maybe I can do this monday because my case is coming up this June 9th.

[Luvmybabas]

And to find out about my court rules. Do you know if its the right website. Courts.state.va.us

[Luvmybabas]

Is it true that in some cases the defendant(me) has to pay for the plaintiffs(midland) arbitration fees? 

[nobk4me]

1 hour ago, Luvmybabas said:

Is it true that in some cases the defendant(me) has to pay for the plaintiffs(midland) arbitration fees? 

No. Not under the consumer rules of the arb forums.  That's what makes arb such a powerful tactic. 

And as for court rules, check for local rules of court too.  They should be posted on your local court's website.

[Luvmybabas]

Nobk4me Thank you. I did try to look to see how I file for arbitration here in chesapeake va. I dont see any info. I have court in 2 weeks and I dont know how to start this. ?

[BV80]

16 minutes ago, Luvmybabas said:

Nobk4me Thank you. I did try to look to see how I file for arbitration here in chesapeake va. I dont see any info. I have court in 2 weeks and I dont know how to start this. ?

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

[Luvmybabas]

BV80 Thank you for the reply. I did look at my chesapeake va court website but it doesnt show how to file for arbitration.

[Luvmybabas]

BV80 Thank you for the reply. I did look at BVI0 I only seee for mediation.

[BV80]

11 minutes ago, Luvmybabas said:

BV80 Thank you for the reply. I did look at BVI0 I only seee for mediation.

The link I provided explains arbitration and provides a sample Motion to Compel Arbitration along U.S. Supreme Court rulings.  Just follow your court’s rules for filing motions.

[BackFromTheDebt]

1 hour ago, BV80 said:

  Just follow your court’s rules for filing motions.

This is an important point.

The court rules will NOT have a section on how to file this or that motion, since there are many types of motions, but they should have something about how to file a motion.  There may be rules on how far in advance it needs to be to give the other side a chance to respond, so if the hearing is June 9, you should try to file ASAP.  

You also need to find out how motions are heard in that court.  In my state, circuit court motions are generally scheduled for hearings, while small claims motions are usually heard whenever the scheduled date for the small claims hearing is.  

Since you already have a court date, you will probably have any motions heard that day.  No guarantee, but this is probably how things are done in a small claims court.  You need to make sure, of course.