My heart goes out to anyone who has experienced the stomach churning feeling of receiving a Summons to court and I can personally sympathize when it is regarding Credit Card debt.Like me, I imagine that getting into debt was never something that you planned or anticipated but rather it was a result of a series of unfortunate events that led to tough financial times. Maybe you or your spouse were made unemployed, a family member became unwell or your car or home needed essential repairs and you were left struggling to find a way to pay for the basic essentials necessities. In situations like that, a credit card bill takes the back seat. Unfortunately for the genuine consumer, it doesn’t always remain in the background and it is just a matter of waiting until it rears its ugly head again.
I remember feeling extremely overwhelmed and pretty desperate as I read through the Summons and Complaint. I was confused and fearful for my family’s future.
I wanted to ignore it and hope that it would go away. I knew that there was no way that I could afford an attorney and so I felt that trying to fight the case was pointless. ‘What do I know about law?’ I remember thinking, ‘I’ve got no chance’.
I was also hesitant to accept that the Summons was legitimate because I had never heard of a company named Midland Funding. I had never opened an account with them or even requested information about a Credit Card from them.
However, despite my doubts and suspicions I decided to do some research and I that was the best thing I could have done.
I came across experiences from many consumers in a similar position to me and found that they had actually been able to win their cases. I also found
The Defendant’s Package and was so relieved to have a reliable resource to refer to throughout my lawsuit.
I quickly learned that Midland Funding had every right to be suing me. They are a junk debt buyer and bought my debt from Capital One and then proceeded to attempt collection of the old debt. Most banks and Credit Card Companies end up selling old debt and Midland Funding are one of the biggest buyers of such debt. I also learned that it was vital that I responded to the Summons and Complaint and show my intention to fight the case.I discovered that if I ignored the Summons or even responded to it after the deadline that Midland would be awarded a default judgment against me and they could begin garnishing my bank accounts. They could also interfere with my wages and in some cases, even social security. A default judgment is not something that you can easily reverse and it definitely wasn’t something that I wanted to attempt so I got to work on my response.
The Winning Details
The Defendant’s Package and other advice online made it clear to me that even though I knew I owned the debt, I should not admit that to anyone. It’s true that I defaulted on the payment of my Capital One Credit Card 7 years before but everything I read made it clear that Midland funding had the responsibility to prove that.
In the Complaint, Midland listed a number of allegations including when my account was opened, the dates I defaulted and the total amount owed including extra fees and interest that Midland tagged on. They didn’t, however, include copies of a contract, account statements or indeed any physical proof. On the advice of various forums and The Defendant’s Package, when I responded to the Summons and Complaint, I admitted to very little and claimed that there was ‘sufficient information to admit or deny’.
In my response to the Complaint I also included various affirmative defenses. These are facts that if proved by the defendant mitigates the allegations of the plaintiff, even if they are true. It could be that the plaintiff has not sued the correct person, they have claimed too much interest or they have started proceedings too late.
In my case there were two that stood out and were compelling. The first was – ‘Plaintiff’s Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration’. This means that Midland hadn’t proved that they own the debt. They should provide the defendant and the court with a document giving proof that they legitimately bought the debt from the original creditor. They rarely produce this without a fight and it is not always signed by the person it should be either.
The key in my case, though, was the Statute of Limitations. This means that Midland started legal proceedings too late. In the US there are time limits outlining specific time frames during which a creditor or debt collector can legally sue the debtor. This time period differs depending on where you live and for me, in Texas, the period is four years. When I reviewed my documents and credit report I determined that I had defaulted nearly 7 years before I received my Summons. According to the law my debt was too old and Midland should not be able to sue me for the debt.
I submitted my answer with my affirmative defenses but chose to immediately file for a Motion to Dismiss with prejudice due to timed barred limitation. I didn’t have to wait too long before I received a confirmation that the Motion to dismiss had been ordered by the judge with prejudice, meaning that the Plaintiff cannot re-file the lawsuit. You can imagine my relief. To be honest, I was surprised that the guidance I found proved to be accurate and I was successful. I did not expect that outcome but now I know it’s possible for anyone to beat Midland.
The Defendant’s Package made the law accessible and understandable to me and led me to my victory. For more information click here.