Civil Summons from Debt Collector has something odd on it...
Date: Sat, 04/25/2009 - 15:15
The odd thing is that they have my mother's name listed with her first name, middle initial, and last name, and then "AKA" and my deceased father's name, middle initial, and last name. From the time this account was open until I could no longer afford to pay it (and they wouldn't negotiate a lower APR or put the account in my name), my mother never charged one thing. She never signed a written agreement, and this credit company, Midland Funding, can not produce a written agreement, they say, because they are not the 'original creditor'.
I have about three different letters written up and I'm not sure what I should send or where I should send it to at the moment. The summons has no date to appear on it, but it does say the following:
"You are hereby summoned and required to serve upon the Plaintiff's Attorney, or upon the Plaintiff, if he has no attorney of record, a copy of an answer to the complaint within 28 days after service of summons on you, exclusive of the day of service. Your answer must be filed with the Court within three days after the service of a copy of the answer on the Plaintiff's Attorney"
So I have one letter drawn up to request a copy of a written agreement signed by my mother, then I have another letter written to the court telling them that there is no "AKA" in this case, that my mother only has one name and the other one is my deceased parent, and that they need to show me proof of a written agreement. Trust me when I say this isn't a debt my mother owes. And I tried to pay on it as long as I could because I didn't want her credit ruined, but things happened and even my own is bad, now.
What should I do first? My mother is 70 years old and on Social Security, I need to make sure this collection agency doesn't get a judgment against her. Thanks in advance.
I forgot to add - my mom and I live in Ohio, and the last paymen
I forgot to add - my mom and I live in Ohio, and the last payment on the account in question was 2 years ago approximately, so well within the SOL.
first, whose name was this debt in? Was it only in your father'
first, whose name was this debt in? Was it only in your father's name? If so, then they cannot sue your mom over the debt, period.....Ohio isnt a community property state, so they cannot say she's liable for his debt unless her name was on the contract that originated the debt.
Second, sending any letter to the plaintiff at this point will basically be a waste of your time, as this has already been filed in court, so thats where I would focus my efforts. You have 28 days from receipt of the summons to file an answer, and that is a must--if you do not do so they will pursue a default judgment against your mom. I would start with that.
The summons may have come with a complaint--did it? A complaint would generally list some basic claims made by the plaintiff in this case. This is a sample of what part of that complaint may look like:
Quote:
1) Defendant resides in _____ County, Ohio, and as such is subject to this jurisdiction. 2) Defendant opened this account with Gateway in (year), and has since accumulated an unpaid balance of _______. 3) Plaintiff purchased this debt from original creditor in (year), and is now the owner of said debt, giving plaintiff the right to collect. |
Keep in mind, this is only a portion and the statements will differ from those I listed, it was just to give you a basic idea. Your mom needs to answer those statements one at a time. For example, if #1 is correct above, I would answer:
1) Defendant affirms the statements made in paragraph 1.
If #2 is incorrect, I would answer:
2) Defendant hereby denies plaintiff's statements made in paragraph 2.
For anything about the debt, I would deny their statements in the answer. If they are suing her in a county that she doesnt live in, then are in the improper venue and thats an affirmative defense. Other than that, I would answer with all denials, and then file motion for discovery, requesting physical proof that your mother signed anything taking responsibility for this debt. Since she didnt do so, and they are wrongly claiming that she is an AKA to your father, I would definitely point that out and inform the court that they are suing the wrong person. Without being a community property state they cannot simply decide to put this obligation on anyone they choose. The fact that they did this with the AKA tells me that they are hoping to prey on an old woman who likely doesnt know the laws or her rights, and get a default judgment against her. In fact, I might even consider adding a statement in my answer so that the court is aware that they are suing your mom claiming an AKA, when in fact the debt belonged to your deceased father.
There is one other thing you should look into before filing an answer--you should check into the laws in your state regarding debts of the deceased. Thus far, I have found the following link--be sure to put the www. in front of it:
creditcollectionsworld.com/article.html?id=20090311YZXY5F0W
It is an article from 2009, so its as current as it gets and it does say that surviving relatives are not legally liable to pay the debts of the deceased. This makes me believe that the people who are suing your mom are trying to get money they arent entitled to, and if this goes on her credit reports, I would recommend she sue THEM for it. Perhaps she should check her credit reports just to be safe.
Please keep us updated, and let us know if we can help out in any way. You might also consider going to www.naca.net and speaking to an attorney in your area. I think it would be a great help to do so, since they will know the laws well and can offer you the most accurate advice. In the end, this seems to be a bottom feeder thats suing you and I would file complaints with the FTC against the debt collector, I would also file with your state's AG office, and a complaint against their lawyer with Ohio bar association for filing a frivolous lawsuit.
Thank you for your reply skydivr. Been unable to sleep because
Thank you for your reply skydivr. Been unable to sleep because of all of this, so ..yeah I'm up at 4am :-)
I applied for a Gateway credit line back in 1992, I believe, to purchase a PC. The credit offered wasn't sufficient to cover the cost, so I waited until they had a sale and applied again, thinking the credit line would be different/more. It wasn't. So I waited until they had another sale, and applied again. Well, that time I was refused a line of credit because I had applied twice before. They weren't smart enough to keep the application on file so when I found a PC, I could just use the credit I was already approved for, they just let me file three times. Finally, my father applied, and got my PC. I would write him a check every month to pay for the monthly payments, and when he died was the first time I saw a statement - he got the credit using my mom's SS# and name.
There was a lot going on at the time - my father cashed in his life insurance policy and gambled/drank it all, and less than 2 weeks after his death, the bank tried to foreclose on her mortgage because she was 3 months behind in payments, and she had to file bankruptcy. I wasn't about to drop this bombshell in her lap, so I quietly continued to pay for the account until I couldn't anymore, which was 2 years ago. Citibank had obtained the account from Gateway and when I began to have financial problems, they were most unwilling to help, so I stopped paying on it, and several of my own accounts as well.
So the account is definitely in her name, but I can guarantee she didn't sign anything - there is no way they have a written agreement with her signature. They claim it's because they're not the original creditor, but I believe it's because she didn't sign anything. She would have been VERY angry at him. He once took out a mortgage without telling her, not to mention several bank loans. He left her in a mess.
Anyway, there is a 'complaint' of sorts, beginning with stating that defendant was a cardholder, used the credit card, promised to repay loans, blah blah blah. It's all pretty basic and generic, and untrue as my mother never once used this credit account. The other thing is that they very willingly took payment after payment from me, but right when my finances were looking grim and I asked them to put the account in my name, they said they couldn't, that I would need to apply for a credit card and transfer the balance.
Citibank.. no wonder they tanked.
So I guess I just need to know how to word all of that when replying to the court - I mean do I just say that this account was opened by my deceased father using my mother's SS#, and that she never signed any sort of agreement, and demand that they produce one with her signature? That seems to me that it would shut this whole thing down pretty quickly. But since I made the payments until 2+ years ago, I don't know how that fact will fly.
This is what I wrote up to file with the court (the document als
This is what I wrote up to file with the court (the document also says that I have to send a copy to the Plaintiff, Midland Funding LLC - they'll be getting that certified mail LOL):
Plaintiff states that the account records are not attached because the Plaintiff is not the original creditor. The fact is that the defendant, XXXXXXXXXX, signed no such agreement.
This account was obtained by XXXXXXXXXX, deceased, using the Defendant???s personal information. This summons also refers to the Defendant as ???AKA XXXXXXXXX??? who was never a signatory of said account, which leads me to believe that this is a frivolous and fraudulent complaint.
Also, the Plaintiff should be aware that the only means of income that the Defendant has is Social Security, which means that should they be granted a favorable judgement, they are
not permitted to garnish her accounts.
Thoughts?
I think I work better under pressure and no sleep - I gave the a
I think I work better under pressure and no sleep - I gave the above a serious re-write. Realized that I should admit to nothing, and looked up information online and wrote this to submit to the court. I'd still love some opinions! I'll be taking the paperwork to the court on Friday:
Be advised that this is a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and validation is requested. This is NOT a request for ???verification??? or proof of my mailing address, but a request for FULL MEDIA VALIDATION made pursuant to the above named Title and Section.
We respectfully request that your offices provide competent evidence that:
(a) the account is valid,
(b) the amount allegedly owed is accurate, and
(c) there is a contractual obligation to pay Midland Funding LLC DBA Midland Funding DE LLC for this alleged debt.
All of the following MUST be provided to adequately validate the authenticity of the alleged debt AND provide proof of a contractual obligation to Midland Funding LLC DBA Midland Funding DE LLC for this alleged debt:
??? Signed credit application between the Defendant and the original creditor
??? Copies of all signed vouchers from the date account was opened until default
??? Copies of all statements from the date account opened until default
??? Proof of the statute of limitations
??? Proof of agreement that you were hired by the Original creditor (creditor as defined by the FDCPA) or
??? A copy of the contract that states Midland Funding LLC DBA Midland Funding DE LLC purchased the alleged debt.
??? If the alleged debt was purchased, provide a copy of an agreement between Midland Funding LLC DBA Midland Funding DE LLC and the Defendant, signed by the Defendant, stating that they have a contractual responsibility to Midland Funding LLC DBA Midland Funding DE LLC for the alleged debt
??? Provide proof that Midland Funding LLC DBA Midland Funding DE LLC is bonded/Licensed for debt collecting in the State of Ohio.
Be advised that failing to provide ALL of the media requested to validate the alleged debt will invalidate any and all claims Midland Funding LLC DBA Midland Funding DE LLC is asserting
regarding this alleged debt. If Midland Funding LLC DBA Midland Funding DE LLC can NOT provide all of the validation media requested above, ALL collection efforts MUST be stopped
and the account MUST be DELETED from Midland Funding LLC DBA Midland Funding DE LLC. If you can NOT validate your claim, you can NOT, by law, collect on it, or SELL it to
another collection agency. Also, reporting a debt to the credit reporting agencies that can not be validated is a violation of the FCRA (Fair Credit Reporting Act), and carries a $2500 fine
to be paid to the Defendant, who has two years to decide if they want to pursue this matter.
PLEASE GIVE THIS MATTER THE ATTENTION IT DESERVES.
If your offices are able to provide all of the validating media as requested, 30 days will be required to investigate this information, and during such time, all collection activity must cease and desist.
Also, no telephone contact will be made by your offices. If your offices attempt telephone communication with the Defendant, including but not limited to computer generated calls and calls or correspondence sent to or with any third parties, it will be considered harassment, and a lawsuit WILL be filed. All future communications with the Defendant MUST be done in writing and sent to the address noted in this letter by United States Postal Service.
...better?
Sending the above DV to the courts wont get you anywhere....in f
Sending the above DV to the courts wont get you anywhere....in fact even sending to a CA wont produce anything either. They do not have to provide you with half of the stuff in that letter. Only thing they need to provide is a copy of the signed contract. If the money was borrowed under fraudulent circumstances by your father, it is up to your mother, not you, to prove it. Unless you hold POA for you mom, the courts and the CA really dont want to hear from you.
The letter I have says that a reply needs to be sent to both the
The letter I have says that a reply needs to be sent to both the debt collector and the court. The reason I'm doing it (and it says on the letter itself - ON BEHALF OF) is because my mother knows nothing about this kind of stuff. We just almost lost our house twice because when she misread something when she was supposed to set up her escrow account on her mortgage payment.
Twice.
If need be, I can certainly remove my name from it, but she doesn't know what's going on which is why I'm looking all this up and typing it up. Did you miss the part where I said she's 70 years old? This is the same woman that ask me to log onto her bank account to pay bills because the process is too confusing for her.
So to reiterate, I'm doing the legwork. That's it. And the last thing I posted was sent to the same debt collector (with a few modifications) by someone else who went to court and Midland not only didn't give her the paperwork that she requested, they also didn't show up and her case was dismissed.
The letter does not answer the complaint, so it is useless. You
The letter does not answer the complaint, so it is useless. You must respond to the summons and either deny or confirm the complaint.
In my NON-LEGAL opinion you are possibly committing a SERIOUS CRIME. You are not a lawyer yet you are representing your mother in court and you are doing it without her knowledge.
Tell your mother what is going on and request through the court that the CA produce the documents. If you can prove that your father has previously openned accounts in her name then you might have a defense. The other is once you get the documnets you can file a identity theft report.
If they do go to court and you show up in place of your mother she loses. And since she has the house you might get a lien placed on it or worse.
WTF? What are you talking about? Dude, I signed for the lett
WTF? What are you talking about?
Dude, I signed for the letter after asking my mom if it was ok and she said yes. SHE OPENED THE LETTER AND TOLD ME WHAT IT WAS. Then I got online and did the research.
IF we have to go to court SHE IS GOING. I have the PC and the Internet so I'm doing the legwork, is there something that's not coming across? I am not doing a DAMN thing without her knowing about it, man! And I am not acting as a lawyer, I'm writing up an answer to the complaint and SHE HAS ALREADY READ IT. I WAS just trying to make sure I had the wording right before submitting it to the court at the end of the week.
Sorry I asked anything!
And thanks to those who have helped thus far but I'm not coming
And thanks to those who have helped thus far but I'm not coming back here asking for anymore advice, it's obvious from the last response that something is unclear and I have enough on my plate without worrying about explaining myself further to strangers.
So no need for anymore replies.
Sorry I got the impression from your comments: " I wasn't ab
Sorry I got the impression from your comments:
" I wasn't about to drop this bombshell in her lap, so I quietly continued to pay for the account until I couldn't anymore"
and
"She would have been VERY angry at him. He once took out a mortgage without telling her, not to mention several bank loans. He left her in a mess"
that she was not aware of the summons.
I would first contact the clerk of the court to see if the summo
I would first contact the clerk of the court to see if the summons is real and not bogus.
When I read FreakGrrls OP, that was my first thought: the CA is
When I read FreakGrrls OP, that was my first thought: the CA is using some sort of bogus "court papers" to try intimidating them. She needs to contact the Clerk of the Court in her county and see if these papers are even legit.
I can't see where this has already been done, when I skim back through all the posts, so I might suggest doing this. Sometimes the Clerk of Courts in your county will have a website you can go to in order to search all the court cases, either resolved or pending, by a person's name.
FreakGrrl, Please don't judge this group by the quality of po
FreakGrrl,
Please don't judge this group by the quality of posts by anonymous posters. If anything, judge it by the high quality response given to you by skydivr7673 (and FloridaRon). Thanks! :D
And if she gives you a Limited Power of Attorney (it's best to Notarize it) to assist her in this matter so much the better.
I understand that this is a very stressful case, but it is also unusual and I would strongly advise that you hire an attorney and counter-sue for the original possible fraudulent collections that you unwittingly paid on. You *MAY* be able to get that refunded if it was already outside of SOL. It was very unfortunate that you made payments on it which have served to complicate the issue even more. I wish you the absolute best in getting this debacle straightened out and behind you.
And make sure that attorney knows the FDCPA and your state collection laws inside and out. Midland is apparently terrible and heartless, see the incomparable Bud Hibb's site where he calls them one of the worst in the nation. "http://budhibbs.com/collectorpages/midland_credit_management.htm"
