I was recently served with a lawsuit by Midland Funding LLC, but first of all, I was not served personally with the lawsuit, someone handed it over to my neighbor and they just asked him for his name, and second, in the documents the defendant (that would be me I guess) appears as "Danny" instead of "Daniel" my legal name. In all documents that I possess my legal name is Daniel and not Danny, I told his to people that I know and they advised me to NOT recognize the debt for which I am being sued because this debt might belong to another person. Can they actually do anything being that in the lawsuit my name is not even correct. Also, I would like to know how do this people expect me to pay $4,674.33 when I am umemployed and I do not posses anything of value, like a house or a car? Thanks.
First of all, if you believe you have nothing to do with a company called Midland Funding LLC and have no knowledge of the factual allegations mentioned in the complaint, then you are probably not the person the plaintiff is looking for. If so, you should contact the plaintiff's attorney on the complaint and explain this to him or her.
If you are connected somehow with Midland Funding LLC but think that the Danny and Daniel distinction will get you off the hook, you would be incorrect. While service of process might be questionable, you ultimately will have to respond to the summons and complaint or else face a default judgment.
Based on your characterization, it appears you are the correct person that the plaintiff is looking for. As such, you need to timely respond to the summons and complaint so that you can defend it. If you do not care, you can just let a default judgment be entered. That is your right.
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.
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Debt Collection Attorney
Midland Funding is not the original creditor; it's a collection agency that might be acting as agent for the original creditor.
Although you were improperly served with the summons and complaint, the court probably would not grant a motion to quash service of summons and complaint because you actually received a copy of them from your neighbor. And even if the court were to grant your motion, plaintiff would simply re-serve you.
I suggest you visit your local public law library and ask the reference librarian for a treatise called Matthew Bender "California Forms of Pleading and Practice." You need Chapter 121 "Common Counts." Look up section number 121.26 called "Bill of Particulars." Follow the instructions for serving a "CCP 454 Demand for Bill of Particulars." Plaintiff is required to provide you a bill of particulars (information about the account) within 10 days. Theoretically, the purpose for you making such demand is to gather information about the account you're being sued for, so you can defend the matter properly. But don't be surprised if plaintiff ignores your demand; plaintiffs in collections matters can be ruthless. (Sometimes they're only interested in obtaining easy default judgments or coercing settlement.)
The *most* important thing you should do is to answer the complaint within 30 days from the day you were served with the summons and complaint. Generally deny all allegations and assert any and all appropriate affirmative defenses (such as statute of limitations, etc.).
Litigation can be very daunting, and if you mess up in one area, plaintiff will take full advantage and may obtain a default judgment against you and thereafter levy your income and assets. Ideally, you should consult with a debt collection attorney for guidance, especially in these early stages of litigation.
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I agree with my colleague that challenging the service pn your neighbor isn't a very productive long term strategy, because it requires a lawyer and even if you won, they'd just re-serve you, and I also agree that the use of "Danny" as your 1st name isn't a defense. You state this loan "might belong to someone else," but if you check the beginning of the complaint, there will be an allegation that Midland is the assignee or sucessor in interest to another party, some bank or credit card company that you did incur a debt from. If you recognize that company, and you know there are debts you haven't paid, this is very likely your debt. Another place to check is your free credit report, at www.annualcreditreport.com, which will show what debts you haven't paid and have been reported to the credit bureaus as delinquent.
2 more points: the amount of the debt might be larger than a debt you incurred because the contract this company is suing on agreed that the creditor could add interest at some very high rate (many credit cards have 22% rates or higher), plus late fees, plus their costs of collection, which are only going to increase.
Your financial status is irrelevant to your liability - if you owe the money, you owe the money, and while you may not be able to pay the debt now, if this creditor gets a judgment against you, they've got 10 years to collect, and then 10 more years if they renew the judgment, so with CA's post-judgment interest rate of 10%, the creditor may not care that you can't pay off a judgment now.
If you have other debts you can't pay off within 5 years or so, you might want to consult a bankruptcy lawyer. If not, your best bet may be to settle this suit, if possible, or to allow this creditor to get their judgment.
Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.
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Debt Collection Attorney
Midland Funding is a "debt buyer." It buys old accounts from other collection agencies and creditors, usually paying just a couple of cents on the dollar.
DO NOT IGNORE THE LAWSUIT. You can consult an attorney, paying a modest consultation fee. File an Answer. If you cannot afford the filing fee, you can file an application to have the filing fee waived. Then, you can conduct discovery, demanding that they produce all of the records and documents relating to their claim. They usually do not have these documents, as they just get a summary of the information from the prior owner of the debt. Such documents include the original account application, credit disclosures (compliance with Truth in Lending, etc.), the credit card agreement, all of the monthly billing statements, all amendments and changes to the original terms of the agreement, documentation relating to the assignment of the debt - the entire chain of ownership of the account, etc, etc. About this time Midland may decide to drop the case. If the case goes to a trial, they will need to bring in competent witnesses to testify about the authenticity of their documents, the time and manner in which they were created, the chain of custody of the documents, etc.
As to whether or not you are legally liable, most of Midland's accounts are old, and they are frequently beyond the Statute of Limitations. As to whether you are "Danny" or "Daniel", if you do nothing and they get a judgment, and if they have any problem levying upon an asset, they can easily request that the name on the judgment be amended to the similar, correct name.
Finally, remember that a court judgment is not an order to pay anything. The creditor must locate assets that upon which it can levy. Many types of assets are exempt from execution, including at least $75,000 equity in a home, $2,300 equity in a car, furnishings, tools of trade, pension funds, disability payments, etc.
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