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Being sued by an attorney with midland funding

Port Huron, MI |

Can I win? I have no attorney...cant afford one, the paperwork they sent in discovery didnt have anything with my signature or actual proof that I used the alleged card...it was filed in the wrong county, and its past its statutes. Court is tomorrow...I dont know anything of filing papers...only going to answer the judges questions truthfully. Tried researching...but there is way to much info and I honestly dont understand most of it.

Attorney Answers 4

Posted

Answering the judges questions isn't going to help you, the judge is not conducting an inquiry. Based on what you posted the attorney for the plaintiff is going to run the show and you can expect to lose. Consider the long term costs of losing this case and try to work out a payment plan with an attorney in your locale. Wish you had asked for help sooner than the night before trial, would've steered you toward legal aid or a MI law school clinic.

NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this matter.

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2 lawyers agree

Posted

If you actually borrowed the money, work out a payment plan. They do not need anything with your signature on it. Using a credit card is the same as signing the contract and agreeing to pay. You do not deny having the debt-you only believe that they can't prove it. They can. Statements came to your address (most likely). If you did not object to the statements, you admitted owing the debt. Ask the judge to establish a payment plan that you can afford (the judge can do that) and be done.

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Posted

First, regardless of whether you owe the debt, it is a violation of the Fair Debt Collection Practices Act ("FDCPA") to sue you in the wrong county. Second, if the statute of limitations ran before the case was filed, you are entitled to dismissal of the case even if you owed the debt. It is also a violation of the FDCPA to file suit on a debt when the statute of limitations has already expired. The FDCPA allows you to recover not only your actual damages but, also, your costs and attorney fees if you win your case -- so it may well be that you CAN afford an attorney. Most attorneys who handle debt collection cases, including myself, will handle these cases at least in part on a contingency basis if there appears to be a legitimate FDCPA claim involved.

Now, going to the substance of Midland's claims and answering your initial question -- it is very difficult for a lay person to win these cases. Unless you are talking about a very small amount of money, I urge you to reconsider hiring an attorney. Midland Funding is what is known as a "debt buyer" - they buy up defaulted debt for fractions of cents on the dollar. They rarely have sufficient evidence to properly present their case in court. Their business model is that they hope you default, so that they can just enter a default judgment and collect against you, without having to prove the existence or accuracy of the underlying debt. When you hire an attorney, that is a game changer - then Midland Funding has to prove: (a) that YOU entered into a contract and/or YOU used the charge card; (b) the terms of the contract, such as the interest rate and attorney fees, if they are trying to add interest and fees to the principal amount; (c) the accuracy of the principal amount claimed, as well as the accuracy of any additional interest or fees that they want to tack on. Usually, the book of "accounts" purchased by Midland Funding is nothing more than an excel spreadsheet with your name, account number and the amount that the original creditor claims is due. The sale is usually accompanied by a disclaimer from the original creditor, saying that the original creditor does not guarantee the accuracy of the information and that the original creditor has no obligation to provide any of the documents needed for Midland Funding to prove its case in court. In other words, you stand a very good chance of winning if you hire an attorney. It has been my experience that the majority of consumers who hire an attorney to defend against a debt buyer win their cases.

Most judges will give you a break and adjourn the case for a short time to allow you to hire an attorney, particularly if the case is filed in the wrong venue and the claim is barred by the statute of limitations.

Good luck!

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2 comments

John E. Melton

John E. Melton

Posted

With all due respect, this information is out dated. The debt buyers have started requiring cooperation from the original creditors and very often have statements, etc. I'd be cautious about counting on getting out of paying back a valid loan in this way. The good news is that debt buyers are more willing to work with debtors and can accept lower payments and often reduce the balances. If you negotiate, you may be able to clear this debt without as much pain as you would have if you were dealing with the original creditor. Be skeptical of that advice that you should raise a frivolous defense and pretend that you didn't incur a valid debt. The court may dismiss the lawsuit if Midland cannot prove their case, but guess what- this may still show up on your credit report and hurt your credit. The court is not going to discharge the debt. You will need to go bankrupt to do that-which might be an option depending on your circumstances. Good luck and I hope that you can work this out.

Dani K. Liblang

Dani K. Liblang

Posted

With all due respect, I have not found that to be the case, despite having several current pending cases where I am representing consumers against debt buyers. Perhaps this will change in the future but, currently, it is rare that the debt buyer has the requisite proofs and it is rare that the debt buyer is able to obtain sufficient proofs from the creditor. Further, even if the debt buyer is able to obtain copies of documents from the original creditor, these documents must still be authenticated by the original creditor in order to be admissible -- the debt buyer saying that it got the documents from the creditor is simply not sufficient for purposes of admissibility. As a practical matter, the likelihood of the original creditor bringing someone in at trial to authenticate the documents in order for the debt buyer to prove its case is slim. That does not mean that I am advocating that consumers put up frivolous defenses. Often, the consumer really does not owe the debt or does not owe the amount claimed. Further, there is absolutely nothing improper, unethical or immoral in making debt buyers prove their case within the rules of evidence, just as any other plaintiff in any other case is required to do. Debt buyers reap huge profits - often by taking advantage of the consumer's lack of knowledge and/or consumer's inability to retain counsel - and sometimes by outright deceptive conduct such as false or misleading affidavits and/or falsified proofs of service of process. An experienced attorney can help level the playing field and make sure it is a fair and just fight. Finally, as to your comment that the court cannot "discharge" the debt -- while that might be true in a technical sense, once a court has made a ruling that the consumer does not owe the debt, the consumer may well have recourse under the Fair Credit Reporting Act if the creditor continues to report the debt as outstanding on the consumer's credit report.

Posted

You have an FDCPA claim for wrong jurisdiction and bringing legal action for a time barred debt. You may also have Telephone Consumer Protection Act options. You can contact me at the information in my web page if you would like legal assistance.

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