I am being sued by Midland credit...and getting my life

Sounds like they are desperate. Find out if this debt has surpassed it's Statute of Limitations. If it has, you need not legally pay it.

Do you know the last payment date on your credit card account? The SOL in Wisconsin is valid for six years from the last payment date. If the debt is already past the SOL, Midland won't be able to sue you in the court.

Get the debt validated by Midland and get all the information related with your account. If the statutes have expired, draft a dispute letter and send it to their mailing address through certified mail, return receipt requested. Midland might take you to the court, but they can????????t get a judgment against you. You need to show all documents to the judge and turn the case in your favor.

Sample debt validation letter/ Cease and Desist Letter. Do not pay a collection agency any money without first sending this letter. If you have any questions, please contact Anthony.

Quote:

The Statute of Limitaions in Wisconsin is 6 years on open accounts. Send a debt validation letter to Midland and make them prove you owe the money, that they are legally permitted to collect it, that the staute of limitaions has not run out. A good validation letter can be found by searching this site. They probably know that the debt is about to expire. Do not do anything to restart the statute like trying to work a plan with them. You can probably stall them until the SOL runs out if it hasn't already
Go here to read about the bottom feeders that they are:
http://www.budhibbs.com/debtcollectorpages/midland_credit_management.htm

The validation letter is two blocks above this comment.

Thanks Anthony. You must have put it up while I was typing

I know, that happens alot. I will be responding while someone else is responding.

the court date is sept 10th, do I have time to respond?

Write a letter to the Clerk of the Court and request a continuance to allow you time to prepare your case and to seek counsel if neccessary. Have you been contacted by Midland prior to the summons? Please go to the link 4 blocks above and read about them. Who were you served by? Be careful that they are not trying to force you into arbitration. They are known for that and submitting phony documents. How much do they say yo owe and how much do you think you owe?

I was not served yet...I got a letter from a bankrupty firm saying I'm being sued and do I want then to be my bankruptcy lawyer saying they could represent me. I went on the Wis. court website and saw that midland wass suing me. BUT I have gotten no contact or letters from anyone...I have not been served. So should I do anything yet or wait till I am served and also, do I go to court if I am not served?

midland credit management vs. William Elliott

Dane County Case Number 2007SC009126


Filing Date Case Type Case Status
Ascending Date Order
Descending Date Order

08-13-2007 Small Claims Open
Class Code Description Responsible Official
Sm Claim, Claim Under $ Limit Esqueda, Carlo R.

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


Parties
Party Type Party Name Party Status
Plaintiff Midland Credit Management
Defendant Elliott, William

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


Future Court Activity
Date Time Location Description Type 2 Court Official
09-10-2007 09:00 am 1st Floor, Room 1000 Return date Court Esqueda, Carlo R.

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


Party Details
Midland Credit Management - Plaintiff
Date of Birth Sex Race 1

Address Address Updated On
Assignee Of First Consumers National Bank, 08-16-2007
Party Attorney(s)
Attorney Name GAL Entered
Peterson, Ryan M No 08-13-2007

I think I owed around $1200, a couple years ago they said I owed over $2000. I do not know what they are suing for...it doesn't say...
http://wcca.wicourts.gov/caseDetails.do;jsessionid=7D4FE3E6E5F4D59E858707C8A5CD9B5E.render1?caseNo=2007SC009126&countyNo=13&cacheId=DAA6C28E2011F6D9F1525EDD7E0E8391&recordCount=32&offset=0

Hi Wil,

I took a look at the link you provided. Did you call the court clerk about this? If you didn't, I would since there is very little information noted on the document. Also, when speaking with the clerk, find out if, how and when this was sent to you. You CANNOT let this go. If you do not respond to the summons, they will win a judgement by default!!!

I also would send a Validation Letter. Be sure to send it Certified Mail Return Receipt Requested.

Don't let this go!

Wil--

It would be a good idea for you to review the Wisconsin Rules of Civil Procedure. This is the law that governs how you must be served. If you have not been served properly, you can challenge the suit, in which case the plaintiff is required to demonstrate to the court positive proof of service. They must prove that the process server gave you a copy. In your state, it is also legal for them to leave a copy with someone else, other than you, when it is reasonably understood that doing so will get it in your hands. So they could serve, just for example, a spouse or other relative. They must prove this. If the first you heard of this is by an attorney contacting you because he saw it, then something is wrong. Everything I am seeing right now states that in Wisconsin, you have 45 days from date of summons to answer. This is an important point--if that is the case and your court date is on 9/10, then they should have served you this quite a while back in my estimation.

You have some good advice thus far---send them a certified validation letter and make them prove their case against you. And definitely file an answer, in that answer make sure to request dismissal on the grounds of improper service. The good thing about this situation is that the plaintiff has the burden of proof, you do not. So, they must prove anything that you are legally allowed to challenge, including the method of service.

Do you still live in Wisconsin? If not, that's probably why you've not been served, and they are suing in the wrong jurisdiction. Unless they are suing you in the county you are living in now, send a letter to the court stating that your have not been served process, and the court has no personal jurisdiction over you.

I still live in Wisconsin, I don't know why i haven't been served. i haven't been home alot the past month...

The first thing I'd do is to go to the clerk's office and get a copy of the complaint so that you'll know how to answer it. Also, check the statute of limitations, and if it has run, use that as your first defense in your answer. That should blow away any cause of action they claim to have. Also mention improper service of process. In your answer you could request that the case be dismissed on those grounds.

actually I think my last payment was in dec of 2001...

Midland? And what address should I use?

midland credit management
8875 Aero Drive Suite 200
San Diego, California, 92123
U.S.A.
Phone: 800-935-4566
Fax: 800-306-4443

If your last payment was DEC 2001, then they waited 3 months to charge off the account and the SOL for Wisconsin is 6 years then it looks like to me the SOL has not expired. I think the SOL would expire between DEC 2007 and MAR 2008 based on the information that has been provided in this post.

I think you should try to stall these guys until the SOL expires if you can but you would have to stall for maybe up to 8 months. Send a DV letter today if you have not already sent one. Get a copy of the summons and answer it with improper service. File for a continuance for as much time as they will give you.

While you are doing that you might try to settle with them. If that is an avenue you are willing to follow then I would offer them 400-600 based on the original amount of 1200 borrowed.

What is the SOL for Georgia?

Breach of any contract for sale: 4 years, (OCGA 11-2- 725) NOTE: Parties may reduce limitation to not less than one year, but not extend it. A cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach.

Contract, including breach of warranty or indemnity: 4 years, (OCGA 11- 22A-506) NOTE: The parties may reduce the period to one year.

Written contract: 6 years from when it becomes due and payable and the six (6) year period runs from the date of last payment. (OCGA 9-3-24)

Open account; implied promise or undertaking: 4 years, (OCGA 9-3-25). NOTE: Payment, unaccompanied by a writing acknowledging the debt, does not stopped the statute. Therefore, the statutory period runs from the date of default, not the date of last payment.

Bonds or other instruments under seal, 20 years, (OCGA 9-3-23) NOTE: No instrument is considered under seal unless it????????s stated in the body of the instrument.

Up

Hill v. American Express, 2008 WL 204623 (Ga. App.)

In January 2008 the Georgia Court of Appeals ruled that credit cards fall under the written contract & are subject to that period of time.Until this ruling is appealed to the Georgia Supreme Court,credit cards will fall under a six year sol period.

Since the case law I posted is not freely available on non member sites yet,I am posting it so everyone in Georgia knows what they are up against.

289 Ga. App. 576, *; 657 S.E.2d 547;
2008 Ga. App. LEXIS 65, **; 2008 Fulton County D. Rep. 259




HILL v. AMERICAN EXPRESS.

A07A2338.

COURT OF APPEALS OF GEORGIA

289 Ga. App. 576; 657 S.E.2d 547; 2008 Ga. App. LEXIS 65; 2008 Fulton County D. Rep. 259


January 24, 2008, Decided

SUBSEQUENT HISTORY: Reconsideration denied February 12, 2008 ???????? Cert. applied for.

PRIOR HISTORY: Statute of limitation. Bibb State Court. Before Judge Adams.

DISPOSITION: [**1] Judgment affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: In a suit to collect unpaid credit card charges filed in a Georgia trial court, a creditor sued a debtor. Both parties moved for summary judgment, with the debtor alleging that the suit was time-barred. But, the trial court disagreed and found in favor of the creditor, holding that the six-year statute of limitation for simple contracts applied. Thus, the debtor appealed.

OVERVIEW: The debtor argued on appeal that the applicable statute of limitation was O.C.G.A. ???? 9-3-25. But, the underlying action did not involve an open account. Instead, a contract was effected when the creditor issued its credit card to the debtor, and said issuance amounted to a mere offer which the debtor accepted when he retained the card and thereafter made use of it. Further, because the transaction at issue was a written contract, the form of the debtor's acceptance was immaterial. Thus, the provisions of O.C.G.A. ???? 9-3-24 governing contracts in writing applied. As a result, the statute of limitations was six years, making the action timely filed thereunder.

OUTCOME: The judgment was affirmed.


CORE TERMS: statute of limitation, card, credit card, simple contract, signature, breach of contracts, sale of goods, cardholder, correctly, unpaid, summary judgment

LexisNexis???? Headnotes Hide Headnotes

Governments > Legislation > Statutes of Limitations > Time Limitations
HN1 All actions upon simple contracts in writing shall be brought within six years after the same become due and payable. However, O.C.G.A. ???? 9-3-24 shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11 or to negotiable instruments under Article 3 of Title 11.

Governments > Legislation > Statutes of Limitations > Time Limitations
HN2 See O.C.G.A. ???? 9-3-25.


HEADNOTES


Georgia Advance Headnotes


GA(1)(1) Banking Law. Bank Activities. Consumer Protection. Credit Card Agreements. Trial court correctly held that a credit card company's claims were not barred by the statute of limitation. There was a simple contract in writing; that the contract was agreed to, not by signature, but by use of the card did not take it out of OCGA ???? 9-3-24.

COUNSEL: Lisa R. Coody, for appellant.

Trauner, Cohen & Thomas, Michael J. Cohen, for appellee.

JUDGES: ANDREWS, Presiding Judge. Ellington and Adams, JJ., concur.

OPINION BY: ANDREWS

OPINION


[*576] Andrews, Presiding Judge.

American Express sued Ricky Hill to recover $ 47,716.44 in unpaid credit card charges. Hill did not dispute that he owed money, but contended that the applicable statute of limitation barred suit on all but a small portion of the amount claimed. The trial court held that the six-year statute of limitation for simple contracts applied in this case and granted American Express's motion for summary judgment and denied Hill's motion for summary judgment. We agree that the statute of limitation in this case is six years and affirm.


HN1All actions upon simple contracts in writing shall be brought within six years after the same become due and payable. However, this Code section shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11 or to negotiable instruments under Article 3 of Title 11.
[*577] OCGA ???? 9-3-24.

Hill argues that the applicable statute of limitation is OCGA ???? 9-3-25, which provides:
HN2All actions upon open account, or for the breach of any contract not under the hand 1 of the party sought to be charged, or upon any implied promise [**2] or undertaking shall be brought within four years after the right of action accrues. However, this Code section shall not apply to actions for the breach of contracts for the sale of goods under Article 2 of Title 11.


- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

1 ??????? ???????Hand???????? is used in legal parlance to denote either handwriting or a written signature.??????? (Citation omitted.) Scarboro v. Ralston Purina Co., 160 Ga. App. 576, 578 (287 SE2d 623) (1981).

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

1. This is not an action on an open account.
[A] contract was effected in this case when the plaintiff issued its credit card to the defendant to be accepted by [him] in accordance with the terms and conditions therein set forth, or at [his] option to be rejected by [him]. Such rejection need take the form of returning the card, or simply its non-use. The issuance of the card to the defendant amounted to a mere offer on plaintiff's part, and the contract became entire when defendant retained the card and thereafter made use of it. The card itself then constituted a formal and binding contract.
(Citation omitted.) Davis v. Discover Bank, 277 Ga. App. 864, 865 (627 SE2d 819) (2006).

2. We also reject Hill's contention that OCGA ???? 9-3-25 applies in this case because he did not sign the contract. Because this was [**3] a written contract, 2 the form of Hill's acceptance is immaterial and the provisions of OCGA ???? 9-3-24 governing contracts in writing apply.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

2 American Express has submitted a copy of the contract between the cardholder and the Bank.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Hill cites to Seaboard Air-Line R. v. Averett, 159 Ga. 876 (127 SE 217) (1925), as authority for his claim that because he did not sign a contract with American Express, the claim falls under the four-year statute of limitation of OCGA ???? 9-3-25. However, Seaboard Air-Line R. does not support this argument. That case interpreted ???????contracts not under the hand??????? to mean contracts not in writing, and stated that simple contracts in writing come under the six-year statute. Id. at 879. See also Adams v. Lee County Bank & Trust Co., 178 Ga. 154, 158 (172 SE 224) (1934) (???????all actions upon promissory notes, bills of [*578] exchange, or other simple contracts in writing shall be brought within six years???????) (citation and punctuation omitted). Accord Harris Trust & Sav. Bank v. McCray, 21 Ill. App.3d 605, 316 NE2d 209 (1974) (third party issuers of credit cards who bring actions against cardholders for unpaid balances have the benefit of the ten-year statute of limitation governing contracts).

In this case, there is [**4] a simple contract in writing. That the contract was agreed to, not by signature, but by use of the card does not take it out of OCGA ???? 9-3-24. GA(1)(1) Accordingly, the trial court correctly held that American Express's claims were not barred by the statute of limitation.

Judgment affirmed. Ellington and Adams, JJ., concur.

Good Post CB. That's as definitinve and recent as you can get with case law in GA (01/08). Just read yesterday that this case stopped just short of the GA Supreme Court.

I am being sued, I received a hand delivered letter from a constable, stating that I am being sued for a caterpillar loan I have that I have admittedly not been able to pay b/c my company is no longer in business and I have not had income until recently. They claim that they fear I may hide/destroy the machine....I already willing gave it back to them once and paid to get it back. I was not subpoenaed for this, just given a letter stating I have twenty days to respond to the county clerk. What do I do?????? I would pay it if I had the money. I have tried to sell the machine but with the bad economy i got no bites. They say I owe 19k and they estimate the machine is worth 10K and I would be responsible for the rest plus legal fees. I feel helpless, can you give me any advice???????

Doctor's office had a collection agency contact us by letter, 5/7/11 for 1900.00 CT scan charge they tough the insurane company would cover, but they did not. This was in 2004. Does OCGA 9-3-24 prevent the getting a judgement and collecting?