Being sued in Wisconsin by Midland Funding
Date: Tue, 05/12/2009 - 00:31
Here's the order of events of what happened for me:
1. Got a letter from a really scamy looking "arbitrator" wanting me to sign "limited power of attorney" over to them (Yeah, right.) Don't have the forms anymore as they went straight into the shredder. Looking back that may not have been the brightest idea I've had, should have stuck them in the safe for later use. This was for arbitration between me and MF, LLC. I figured it was just another debt collector thing to try to get me to respond. Note that I've ignored mailings from several other debt collectors about this account in the past, and was never once harassed by phone (VOIP, so my name isn't linked to my phone number.)
2. A couple of weeks later, I get a letter from a bankruptcy attorney's office stating that I'm being sued and offering legal services. Shortly after that I called this office and set up an appointment to talk to the attorney on the phone. I was turned down because I'm not far enough in debt, but he did give me a couple of tips (fact that they weren't licensed and some things to ask for to prove the debt.)
3. About 5 months later (that would be now) I receive in the mail a summons and complaint. I just did a search through legal notice publications on this website: [removed so I could post] and found no matches for my name, and only 2 matches in the newspaper of the city I'm in for Midland Funding (neither of which are my case.) This brings me to my first question:
Q1: From what I've read I was NOT properly served. Is this grounds to get the case thrown out? What should I do about this?
Q2: The complaint reads that the defendant is:
Midland Funding LLC
By its servicing agent
Midland Credit Management Inc.
8875 Aero Drive Suite 200
San Diego, CA 92123
Who am I being sued by? Midland Funding or Midland Credit Management? The wording "by its servicing agent" leads me to believe they are two separate entities. Midland Funding LLC is NOT licensed in the state of Wisconsin, yet they are the ones who show up on a public records search for the lawsuit. Midland Credit Management IS licensed in the state of Wisconsin. If it is MF, LLC that is suing me I can get the case dismissed quite easily. If it's MCM I'm out of luck that route.
Q3: If this is all a huge legal screwup is there anything I can get in addition to having the case dismissed? I'm thinking something like sanctions against the lawyer (a full disbarring would be nice but I know it'll never happen) or better yet having some kind of "double jeopardy" type rule applied so they can't just refile after fixing all their mistakes.
Q4: The things the attorney mentioned above told me to ask for were the following: basis for the calculation of what they say I owe; identifications of all payments that have ever been made on the account; all charges imposed; the original application that I signed; a copy of the original cardmember agreement and any amendments to it, not a faxcimilie or template, but the one I actually got; and a copy of every billing statement. How exactly do I ask for that once I get to court if I can't get it thrown out any other way? Should I ask for it before it gets to court?
The summons I've got says I've got 40 days from May 22 to respond, or they may get a default judgment (we all know what happens after that: garnishment city.)
Q5: Should the worst happen and they win judgment against me, what property of mine can they take beyond 20% of my wages? I own a car that has an unknown bluebook value (it has purely cosmetic but nasty looking body damage from being struck while parked, estimates at repair range from $800 to $1200.) If not for the body damage the car would bluebook for about $1800. Note that it is also my only means of getting to work, if that makes any difference. Can they have someone walk into my house and start grabbing stuff to try to sell? (I'm mainly asking this to ease my paranoia a bit. If they can't do that and I'm just being paranoid tell me I'm just paranoid and a few fries short of a happy meal. :) )
I apologize for the long post, and thank everyone who took the time to read it. I'll check back daily after work (usually around this time, work second shift) to see what anyone has to say.
Hi AFN, 1: Good thing you didn't go for Arbitration, they are
Hi AFN,
1: Good thing you didn't go for Arbitration, they are heavily biased towards the creditors. ("http://www.arbitrationjustice.com/")
3: Call your county Court house to verify that it's a real summons.
Q1: See 3 above. If it is real, here is a helpful site on the litigation process and what you can expect. ("http://www.nedap.org/hotline/court.html") If you were not properly served, then you can file a Motion to Dismiss based on Improper Service, at least that will bring the issue to the courts attention and the process server will have to testify as to method of delivery.
Q2: It's the same company, they have an umbrella firm with a lot of DBAs (many large business do that).
Q3: You never mentioned getting a dunning letter. (the letter they are required by Federal law to send you within 5 days of first contact). If they did not, that is a major violation of the FDCPA, Count 1. To make them not be able to sue you again, you would request the court to close the case With Prejudice. Double jeopardy is a criminal statute. If the case is closed Without Prejudice, they can sue you over and over until you or they win. Since they have obviously violated the FDCPA, you have a good chance of winning. Not only that, if you have documented evidence of FDCPA violations, I would counter-sue. There is $1000 and possible court costs and attorney fees in it for you.
Q4: File a Motion for Discovery, as per the instructions of your local county courthouse (call them and ask). It is part of the lawsuit process.
Q5: They will operate in the following stages, the next stage will not happen unless you frustrate them in carrying it out:
1) voluntary payment plan.
2) Wage garnishment.
3) Lien on your property, if none, they can file a Petition to the Courts to seize some assets, but your car does not sound like anything they would take - it would have to have some resale value on it (Form # GF-115), - Execution Against Property.
4) They can request the Court to charge you with Contempt, and if that happens, the Court will issue a bench warrant. But that is VERY rare, normally only used with large debts (because to avoid all the above, you would have to show no income, so someone will a large debt has a greater chance of being involved in money laundering, but this last one is probably overkill with the info....)
There is no need to apologize, that's what we are here for, to help! I hope that my answers are of some assistance to you, welcome to the Community, and if you have any more questions please feel free to ask. And please keep us updated!
Thanks!
Quote:Q3: You never mentioned getting a dunning letter. (the let
Quote:
Q3: You never mentioned getting a dunning letter. (the letter they are required by Federal law to send you within 5 days of first contact). If they did not, that is a major violation of the FDCPA, Count 1. To make them not be able to sue you again, you would request the court to close the case With Prejudice. Double jeopardy is a criminal statute. If the case is closed Without Prejudice, they can sue you over and over until you or they win. Since they have obviously violated the FDCPA, you have a good chance of winning. Not only that, if you have documented evidence of FDCPA violations, I would counter-sue. There is $1000 and possible court costs and attorney fees in it for you. |
I need to mention this--this statement is partly incorrect. FDCPA violations will not in any way impact this lawsuit. FDCPA violations do not play any part in whether or not you owe the debt, so it will generally be set apart from the main body of the trial, which is them suing you over a debt. It should NOT, repeat NOT cause the judge to dismiss the case against you if they violated the FDCPA before bringing suit. IF you countersue, the judge will typically treat that as a separate matter and hear evidence first on their case against you first. ALso, trial proceedings offer you the opportunity to get validation of the debt, etc etc, so even if they violated the FDCPA like this, the trial itself will be independent of that fact. I am not trying to talk you out of countersuing them, but you need to know the facts--the only thing mentioned in the above post that may impact this case is if you were improperly served. If they broke the law you SHOULD countersue them. But as far as this lawsuit, your main goal should be to get to discovery phase and file motion for discovery, asking for signed contract, payment history, etc etc etc--Midland is famous for not having this proof, and has in the past tried to use the affidavit trick to respond to requests for discovery. They basically have someone who works for their company sign an affidavit stating that they have personal knowledge of this debt and that the statements made by Midland are true and correct to the best of their knowledge. This is NOT proper validation, and if they do that you MUST object immediately on the grounds that it is hearsay and therefore inadmissable in court. They must be able to produce any "witness" who testifies against you so that you have the opportunity to question them. If they cannot do so, then you object to the testimony, which would be the affidavit they often use at that point. If you file for discovery and thats what they respond with, you then file a motion to compel discovery, which basically is the judge telling them they had better produce what you requested as evidence. If they cannot(and they usually cannot), then you move for dismissal with prejudice.
I was actually thinking of the dunning letter. It seems to me th
I was actually thinking of the dunning letter. It seems to me that they have no proof of the debt, based on the violations that I can see here. So the statement "you have a good chance of winning" was related to the entire case, not the specific point. My apologies for not making that clear.
Thank you for bring that to my attention! :D
Thank you Chrys and skydivr for your responses. I'll call the
Thank you Chrys and skydivr for your responses.
I'll call the courthouse tomorrow before I head to work to see if the summons is real. I have a feeling it is. Isn't it fraud if it's not?
As far as the dunning letter, I may have received one from them in the past and just don't remember it. I've gotten letters from so many different collection agencies about this account it's hard to remember who sent what. I never thought I would get sued over it, so I didn't pay much attention to any of them
I'll ask about the motion for discovery when I call the courthouse tomorrow.
Dismiss with Prejudice is the term I was looking for. What are the chances for getting the case dismissed with prejudice for the improper service? Should I ignore the improper service and hope they lack evidence and ask for dismissal with prejudice for that? I'd much rather have this thing squashed once and for all rather than keep getting it dismissed over and over until they get all their ducks in a row so to speak.
I should probably clarify exactly what was sent to me in the mail the other day just in case it proves useful. The envelope was sent from the law firm representing MCM. There are 4 pages stapled together.
Page 1 is an "Affidavit of Mailing." There are no signatures on it. The signature lines all say "/s/ So and So." There is a signature line for a notary public also like that.
Page 2 is an "Amended Summons." It has blue stamps stating that it was filed on a particular date. It also has no signatures, only the "/s/" and typed names like above.
Pages 3 and 4 are an "Amended Complaint." The last page bears the signature of the actual attorney representing MCM. The first page has the same blue ink filed stamp as page 2, but with an earlier date.
I don't know if this info will prove useful or not, but I figured if it was useful and I didn't post it there's no way it could help, but if I did post it and it was useless it could be ignored.
Also, thanks for reminding me about the signed statement being hearsay. I know that's not admissible in court, but may not have remembered it on the actual court day. I also didn't think they'd be dumb enough to try to pull that in court.
I'll be sure to keep everyone up to date on how things are going. Thank you again for getting me started in the right direction.
Here is a Sample of a Summons. Although it is for New York, it w
Here is a Sample of a Summons. Although it is for New York, it will give you some idea.
Here is some info on how to deal with the court case.
Here is a Legal Aid Consumer Fact Sheet (again, for New York but it is great info) on the litigation process.
If it isn't real, they have violated the FDCPA in a big way, and that could be used as part of your defense if you should ever have to go to court over it in the future (but you only have 1 year to file charges for FDCPA violations).
The Dismiss with Prejudice is what you would go for if the debt is absolutely NOT yours. It protects you from them trying again. Dismissing Without Prejudice is what you would go for (but always request the With P.) if there was a procedural error on their part (of course you would have to make sure that *you* follow procedure). The County courts have excellent websites from what I have seen so far, including detailed instructions for those who choose to present their own defense (pro se) and the necessary Forms are also often on their
website.
It is doubtful that you would get a Dismissal With Prejudice unless they cannot prove the debt is yours and there are flagrant FDCPA violations, which is another reason why I said to keep track of and document any FDCPA violations.
Getting a case dismissed for improper service usually works if you never knew about the Summons and got a default judgment against you.
OP here, just wanted to put a closing to this thread. Midland
OP here, just wanted to put a closing to this thread.
Midland Funding voluntarily dismissed the case!
Here's a rundown of what happened:
Shortly after my posts above I contacted a lawyer referral service for my area that can get lawyers for low income people. I sent in an answer to the complaint denying everything. A few weeks later I got a discovery letter, and the day after that an attorney volunteered to take the case pro bono.
Their discovery questions were a fishing expedition that belonged on Bassmasters. They wanted copies of things like complete bank statements to any account I had power to withdraw money from and lists of other credit cards I held. They were also fishing for the amount of the defaulted account.
I met with the attorney and he helped me put together an answer to their discovery. Just before we were going to send in our answers to discovery I found the old credit card from the account in question in my safe and the account number didn't match! I immediately contacted my attorney with this info and he put together an updated discovery denying most of the questions asked. (The answers were all basically 'I have no information as to the account referenced, it is not my account.')
After sending in answers to their discovery, my attorney drafted a discovery letter to send to them asking for everything to prove the debt belonged to them (a mountain of paperwork I was sure they didn't have, but my attorney was a bit less optimistic.) A few weeks after sending it in they asked for an extension which my attorney gave them without challenge as the court would have granted it anyway.
During the time waiting for their answers to come back we discussed tactics to use in various situations depending on what their answers looked like, everything from settlement options to outright filing for bankruptcy. From my research I had a strong feeling I would win in the end. My attorney's thoughts were far more grim, thinking I didn't have much of a chance of winning from his experience (although he'd never dealt with MCM before.)
Also during this time their attorney was pushing for settlement. They were claiming a bit over $10,000 in their initial complaint. They offered a settlement of a payment plan based on the full amount with the interest frozen. The attorney advised against it thinking a much better deal could be reached. I told my attorney I didn't want to make any offers until after I saw answers to their discovery. He agreed that was reasonable with the tactics we had come up with, and advised their attorney of the requirement for answers before settling.
We waited for them to answer and no answer showed up. The deadline for their answers (December 1st) came and went. I contacted my attorney, and he said he'd wait another couple of days to make sure it would be well past the deadline then notify the court of MCM's refusal to cooperate with discovery. During that time he received notification that the case had been voluntarily dismissed by MCM.
In a couple of months I will pull up a copy of my credit report and begin watching for any shenanigans MCM may try to pull with that. I have seen some reports that sometimes if they can't beat you in court they will do illegal things to your credit report. I can only hope they're dumb enough to try that with me, because I'll be waiting to nail them with a lawsuit of my own should they try. I'm not expecting it to happen, but it's better safe than sorry and keeping an eye on credit history is a good idea anyway (and something I haven't been doing but really should.)
I want to thank everyone above that helped to get me started on this. I hope this post proves useful to someone else in the future. If nothing else it should serve as a reassurance that these people are nothing more than schoolyard bullies. If you stand up to them they will go away and pick on someone else. It's depressing the number of people who don't stand up and fight back (as referenced by the number of cases they've won in a public records search.)
I am thinking of buying an e-document package to being an answer
I am thinking of buying an e-document package to being an answer to my complaint. Is this wise and worth the $40? I notice your last update post was December. Is there any way that you can refer the lawyer you used since they are now familliar with MF.LLC. You began with you are in WI, I am as well.