The credit card I had was Bank Of America it is almost 6 years old, I was 18 when I got it so payments were hard to keep up with. The bank sold my debt many times, but for the last couple years Midland Funding has had it. In July of 2011 I agreed to make automatic withdraws from my account of $50.00 to them. The lady told me I would only need to contact them if I needed to change the date for the withdraw or increase the amount. She said no further contact needed to be made. May of 2012 was the last payment they took out I never heard from them or received letters from them as to why. On April 25, 2013 I was served papers saying I'm being sued by Midland Funding for the remaining balance plus court cost. Court codes OCGA 24-8-803(6) OCGA 24-9-902. Please help me any information is good.
Employment / Labor Attorney
It sounds like you have a number of defenses to the claim. I suggest you contact an attorney and obtain some advice and/or representation.
Sorry to hear Midland is giving you trouble. I've heard of this same thing happening to other consumers by Midland.
I would first of all advise to seek an attorney and have him/her write to Midland stating you already paid off your account in full, and provide proof that to them. Hopefully they will see their mistake and correct the account. Regardless of how that goes, you will need to make sure to timely file an answer to the complaint to prevent Midland from getting a default judgment against you. Best of luck.
Generally, Georgia has a six year statute of limitations on simple contracts and the Georgia Court of Appeals has determined that a credit card is a simple contract. The statute of limitations generally starts from the moment you defaulted and never caught back up. You definitely want to defend the lawsuit and I agree that your best bet would be to hire an attorney or at least consult with one. Remember the saying that only a fool has himself as a lawyer. You may want to consider whether a bankruptcy will be in your best interest as well. However, If you have no choice but to defend it yourself, you can find the Official Code of Georgia Annotated (OCGA) on the internet. I think lexis nexis has a free version. You can look the statutes up there and print them off as well. You will need to be prepared to file an answer timely, answer discovery that may be requested of you timely, request your own discovery timely, go to all court appearances timely, go to all noticed depositions timely, answer any motion for summary judgment timely, go to all scheduled hearings timely and prepare for and conduct a trial of the issues with the court. You will need to read up on all of these areas of law as well as the rules civil procedure, the appropriate court rules and the rules of evidence at the very least. Additionally, you need to get together proof of every payment you made, all communications and agreement you had with them, and any other document or witness that you think helps prove your case. Good luck.
This answer expresses only general statements about bankruptcy and/or debt defense and does not constitute advice to you in any form and does not create an attorney client relationship between the party asking the question and the party providing the answer. Furthermore, all cases are fact specific and it is not possible to give you legal advice without a complete evaluation of your case or if you are already represented by an attorney. Therefore, this answer does not constitute legal advice of what you should do specifically in your case. You should seek local counsel to help you with your specific issues.
Make sure you answer the complaint and deny the claims. Remember, although you recall a debt to Bank of America, you have no way to be sure that Midland owns your debt to Bank of America. Although the Georgia courts have held that the statute of limitations on a credit card debt is 6 years, there is still a defense that the majority of the debt is barred. That is because the Courts held that it is the signing of the charge receipt that creates a written contract. Midland will not be able to produce the written charge tickets. I would also be surprised if Midland can produce valid and complete purchase documents showing they purchased "your" debt. Depending on the amount of the debt, it may be in your best interest to hire an attorney. Defense of credit card cases in Magistrate Court only cost about $500.00 in attorneys fees. Finally, and most importantly, do not let them win by default. Whether you hire an attorney or try to defend the action yourself, make sure you defend the action. Good Luck.