Reeree1982

Being sued my Midland Credit Management--need some advice

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Hello. I want to apologize for taking over someone's thread with my questions. Our cases are very similar in nature. Here is the information I have regarding the suit.  I should point out that I never had any contact from Midland Credit Management/ Clarkson and Hale prior to them serving my mother with it at an address I have not lived at in over 15 years. 

 

1.    Who is the named plaintiff in the suit?

Midland Credit Management

 

2.   What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Clarkson and Hale

 

3. How much are you being sued for?

    $1776.35

 

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

     Capital One

 

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

    My mother was given the documents by a police officer. 

 

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

I guess it would be in person to my mother at an address I do not reside. 

 

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

  I am going to say no,  according to: the Magistrate rules (1) Individuals. Upon an individual other than a minor under the age of fourteen (14) years or an incompetent person, by delivering a copy of the summons and complaint to the individual personally or by leaving copies of the summons and complaint at the individual's dwelling house or usual place of abode with a resident of suitable age and discretion, or by delivering a copy to an agent authorized by appointment or by law to receive service of process.  Maybe someone could help explain this to me, but the way I am reading it is it needs to be served where I usually live-and I do not live there and have not for some time. I do not even receive any mail at that address. 

There is a letter in my summons and complaint documents tat states to serve defendant at my mothers address and it has my current phone #. 

 

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

  The summons was the first contact that I had. 

9. What state and county do you live in?

     Richland County, SC. The court that it was filed in is in my area, but it was filed with my mothers address, which is a different Magistrate court. (same state)

 

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

      It is just inside statute of limitations. I last paid 12/2017 they served my mother 11/03/2020

 

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

        September 5, 2015-- I honestly do not remember

 

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

       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).

       Served. I gave answer with a counter claim that they filed the suit with an incorrect address and I also stated that because the plaintiff had access to my correct address with a debt they say I owe. I also stated they were negligent in sending the summons to an address I have not resided. I I stated that the Plaintiff had access to the alleged debt so they should have access to the correct mailing address (this may have been where I went wrong) I stated this was a violation of the FDCPA by communicating with a third party. The law firm answered back  denying my claims, requested dismissal of my claim  and a judgement in their favor. They also requested I show proof to my claims against them 

 

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 I did not know about this debt until I was sued. I actually requested debt validation for some items prior to them starting their process and the debt was not on my credit report from them at that time. 

 

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

        30 days. I filed my answer Dec 1, 2020

        They are claiming that:

-         the account was charged off of 12/08/2018

-         for good and valuable consideration the account was assigned to Midland making them the holder of the account

-         that they are owed $1776.35

-         that I agreed to pay all collection costs

Did you receive an interrogatory (questionnaire) regarding the lawsuit?

No

 

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

an affidavit,  the request for a Sherriff to deliver the summons, A summons that  I am required to answer, the complaint, There also is a notice required by the FDCPA that states the creditor is MCM, the debt is considered valid unless i dispute validity with 30 days of receipt of this notice (the notice is dated 10/7/2020---BUT I did not receive it until I was summoned. I sent a validation email to the office and I never received a response. Again, this is the first contact and first knowledge I have about this balance.

 

 

SO, I'm sure I messed up and I have already been advs to speak to a lawyer on the other thread. I will do this. BUT, I have 3questions. Is it too late to file an appeal,  2 I sent a DV, after receiving the summons. I did so within 30 days of getting it. i have not got anything from them except the reply to my answer--and I feel they never had my mailing address until I updated it in my answer and on the DV. 

Final question, even though the court that is handling the case is the correct one for my mailing address, do I have any leverage against them for filing the documents using my mothers address which is served by a different magistrate court).

I almost want to settle with them, but I really don't remember what I owe, and I never received anything from this company or law firm prior to the summons. Sorry it is a lot, but I really don't have money for an attorney- I am barely making it paycheck to paycheck-- this whole thing has sent my anxiety into overdrive. 

 

 

thanks in advance for your help. 

 

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@Reeree1982

In your answer, did you object to the service of process and jurisdiction of the court?  If not, you may have waived the right to object.

In regard to debt validation, the right to validation is triggered on after receiving the initial (first) communication from a debt collector.  The FDCPA states that a summons and complaint is not an initial communication.  It does not trigger validation rights.  Therefore, Midland is not violating any laws by failing to respond.

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Yes to service of process but I did not clearly state I felt there was a question of jurisdiction of court. I stated that it was filed using an incorrect address and I had not lived at that address for over 15 years. I also stated that the summons was not served at an address that I live, but to my mother’s address—somewhere I haven’t lived in over 15 years. I see I can do an amended answer and I was trying to figure out if it is not to late to do so. To add the jurisdiction and delete the fdcpa claim. I’m sure I have jacked myself up royally in this whole matter. 

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Hi everyone. Been reading a lot, first post here. I hope this is not considered hijacking the thread but I did not feel it really warranted its own.

 

Multiple threads since December, and seemingly not before, have mentioned Midland suing on Capital One OC accounts. This seems to be a rather dramatic change from, well, post-2008 to now, as Cap1 has apparently been well known to hold their own paper and sue aggressively. So what does this mean? What are the implications? Is this because of COVID? Are the winds shifting for Cap1 cardholders and perhaps, is the standard advice becoming outdated if Cap1 is going back to selling off to JDBs?

 

I will have many more questions in the future regarding my own circumstances but I hope we can discuss the fact that threads are popping up with Midland (and only Midland, so far) suing on Cap1 accounts. 

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Ok I am just giving a quick update with what I have done so far. So the attorneys responded to my claims and stated they essentially wanted a judgment against me because by claims had no proof. So, I was able to file an amended answer. I playing their game.

First I challenged jurisdiction based on my mother’s address. The case was filed using my mother’s address as my address. This address is s not a part of the magistrate where the case was filed. However, my physical address is. For proof: I attached a letter from my landlord, car registration bill, voter registration...things anyone could find if they did their due diligence to find my correct address. I did affirm that my correct mailing address is a part of the correct magistrate. (That may not have been smart, BUT I’m trying to force them to show documents that I had this debt. Either before it goes to court or in court.) 

*When I had that card I never gave them my mother’s address so they must have pulled it from my credit report. I don’t think they have any documents.
 

Second magistrate rules state that I should be served at my “dwelling house or usual place of abode.” I don’t live at my mother’s house and have not for many years. Well that is a violation of magistrate rules and I submitted proof. (This is another key. Midland agrees to do when initiating and during litigation—follow the courts rules and laws of the state/county/town etc.)

Third, (this is where it gets interesting)  SC attorney general joined several other states attorney general’s in a settlement with Encore Capital (midland umbrella company). In this settlement, Midland agreed to do certain steps when it comes to signing affidavits, and filing lawsuits. 

The short version of the case can be found: http://www.scag.gov/archives/38330

Here is the full document: https://www.myfloridalegal.com/webfiles.nsf/WF/TDGT-B75NZ2/$file/Midland+AVC+12-4-18.pdf

I advised that they need to show proof that they are the rightful owners of the debt. I listed the things the plaintiff needs to do before  they can even file for litigation and stated they failed to sunburn proof with the affidavit. I challenged this because, if they had the documents, why not send it with the summons and complaint? (They don’t have it, or they are trying to get it.) Also. I noticed while reading the messages on the boards (specifically for SC cases). If the JDB had proof, they submitted the documents and affidavit with the summons and complaint. 

Finally as part of my research. I checked to see what types of judgments these cases are getting with this JDB. I looked at the cases in my county and there are a lot of default judgments. I have only locate 1 so far where the defendant was awarded a payment. (Personally I believe they sent and filed using my mother’s address to get a default judgement, BUT I can’t prove that). 

I submitted all of my proof for my counter claims.  I was very careful to respond to their answer to my counterclaim. I wanted to say hey I have my receipts. Where are yours? 
The lawyers answer to the original claim— my claims did not have proof. I put the ball back in their court and stated there are claims, but plaintiff has not provided proof of their claims. (I know no discovery in SC.)

My counterclaim is related to jurisdiction of the original filing, the improper service—based on Magistrate rules, and violations of their agreed upon affidavit processes and litigation process. I am seeking a monetary value. Not sure if I will receive it, but these are things I can prove they did not do properly.

 

I removed allegation of FDCPA violation.

***edited to add I did request plaintiffs case be dismissed... I actually requested this in first answer. 

I know it’s long, but this is where I am in the process. I will keep the thread update. There has not been a court date set yet at this time. 

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Good news — if the magistrate rules correctly the case should be dismissed without prejudice. 
 

Bad news #1 — Magistrates don’t always rule correctly.  
 

Bad news #2 — They will still be able to file in the correct venue later.  

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1 hour ago, BackFromTheDebt said:

Bad news #2 — They will still be able to file in the correct venue later.  

I kind of figured that...but question: if it is dismissed and they try to re-file, they would still need to be within the statue of limitations correct? Because they filed right before the time was up, I couldn’t use a time barred defense. My statue of limitations ended in December they filed originally October. Hopefully everything goes correct. 

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24 minutes ago, Reeree1982 said:

I kind of figured that...but question: if it is dismissed and they try to re-file, they would still need to be within the statue of limitations correct? Because they filed right before the time was up, I couldn’t use a time barred defense. My statue of limitations ended in December they filed originally October. Hopefully everything goes correct. 

It’s complicated. 
 

Generally, the SOL is tolled when they file a case.  If a case is dismissed without prejudice while the SOL is tolled, many jurisdictions give the plaintiff a certain window during which they can file again.  
 

There are some questions for which I don’t know the answers, but you need to know the answers if they file again and you want to use SOL as an affirmative defense:

 

1.  How long do they have to file again in your jurisdiction?

2. Does filing in the wrong jurisdiction still till the SOL?   

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12 hours ago, Reeree1982 said:

I challenged this because, if they had the documents, why not send it with the summons and complaint?

The rules for your court may not require or allow this.  Failing to do it is not automatically a violation or means they do not have it.

 

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24 minutes ago, Clydesmom said:

The rules for your court may not require or allow this.  Failing to do it is not automatically a violation or means they do not have it.

 

Based on the aforementioned lawsuit that my state was a part of, they do have to submit it with the affidavit. (You are right, they could be holding on to it for a court date). I just find it strange that some other members in SC had these documents attached to their summons and I do not.  My situation is exactly what the settlement was about: Midland sending affidavits with no proof. Midland made and agreement with my state and others to do certain actions when filing a lawsuit within our states. They just didn’t do what they agreed to do. 

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50 minutes ago, Reeree1982 said:

Based on the aforementioned lawsuit that my state was a part of, they do have to submit it with the affidavit. (You are right, they could be holding on to it for a court date). I just find it strange that some other members in SC had these documents attached to their summons and I do not.  My situation is exactly what the settlement was about: Midland sending affidavits with no proof. Midland made and agreement with my state and others to do certain actions when filing a lawsuit within our states. They just didn’t do what they agreed to do. 

Where in the document is it stated that Midland must submit documents with the affidavit?

BTW, only the attorneys general of the states that participated in the lawsuit can enforce the Assurance.  Consumers cannot.

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Update: the law firm responded to my amended answer. They did send me a copy of bills starting when I stopped paying, a bill of sale, and the dunning letter that was originally sent to me. All of the bills from the original creditor have my address. The dunning letter sent by MCM is to my mother’s address. My mother’s address was no where on my capital one account. They could have accessed my credit report and pulled an old address. My question is: what should be my next step? Did MCM violate anything by sending the dunning letter to an address that was different from the creditor? Also, I almost want to just see if they will settle. Any advice? 

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