Midland Credit Management sued me in Florida. What should I do?

Jason Ricardo and Mike Wasylik at Ricardo & Wasylik each have 30 years of legal experience and they represent people who have been sued by Midland Credit Management.

Here’s what you need to do if Midland Credit Management has sued you:

1. READ: If a process server delivered a summons, READ THE SUMMONS CAREFULLY. It will tell you whether you need to 1) go to court on a specific day to defend yourself, or 2) file a written response to the summons. If you don’t have a copy of the summons, you can look up your case by searching your name in the county clerk website.
2. TAKE NOTE: The summons will tell you the DATE you need to go to court or deliver a written response. If you need to go to court, it will tell you the date and time of the hearing and the location (or the videoconference information). If you need to file a written answer, it will tell you who to send it to, and when you need to send it—usually within 20 days.
3. DECIDE: If you have to go to court, are you going to show up alone, or do you want help from someone who’s been there? If you need to file a written answer, do you want to make it up on the fly or get help from someone who’s been doing this for decades? You need to decide, because a lawsuit is just Midland’s claim against you. Filing the lawsuit does not prove that Midland owns the debt, that the amount is correct, or that Midland has admissible evidence to prove its case.
4. TAKE ACTION: If you decide you want help, schedule your FREE call with one of the lawyers at Ricardo & Wasylik. If you’re going to handle it yourself, make sure you carefully follow the directions in the summons, and act before time runs out.
5. FIGHT: Whether you get help or decide to go it alone, don’t give up. You have rights and if you know how to stand up for them, you can win.

What does Midland have to prove in court?

Midland commonly uses two legal theories when they sue to collect a debt they bought from someone else, and each one requires them to prove different things. These two theories are: 1) breach of contract, or 2) account stated.

What does Midland need to prove if they sued you for “breach of contract”?

To prove their claim for breach of contract, Midland would have to prove all of the following:

1. You made a contract with someone, such as an agreement to repay a debt.
2. You broke your promise under that agreement—usually by failing to pay.
3. Your broken promise caused the damages Midland is claiming.
4. Midland bought or otherwise obtained the right to enforce the contract from the original lender.

If Midland fails to prove any one of these parts of its case, it loses.

What does Midland need to prove if they sued you for “account stated”?

To prove their claim for “account stated,” Midland would need to prove all of the following:

1. That you had a financial relationship with the original creditor—such as opening a credit card account.
2. That the original creditor sent you a statement for a specific amount due—such as a monthly account statement.
3. That you received the statement and failed to object to it within a “reasonable” time, thereby agreeing to the amount due.
4. That you failed to pay the amount due.
5. That Midland bought or otherwise obtained the right to collect the account before filing suit.

Again, if Midland fails to prove any one of these parts of its case, it loses.

How much proof does Midland need to show?

The level of proof Midland needs to bring is much lower than most people think. Midland doesn’t have to prove its case conclusively, and it doesn’t have to prove its case beyond a reasonable doubt, like in a criminal case. This is a civil matter, so Midland only has to prove its case by a “preponderance of the evidence,” meaning the evidence for each part of its claim must show that the fact is more likely than not to be true—in other words, just over 50%.

What defenses can you use to beat Midland in court?

There are two ways you can win a lawsuit as a defendant. First, you can win if Midland has gaps in the evidence for some part of its claim. For example, Midland might fail to prove that someone mailed you the account statement. To win this way, you need to know exactly what Midland has to prove, what documents it plans to use to prove it, and what is likely to be missing.

The other way to win is to prove an affirmative defense. For example, if you prove that you made payments Midland claims you missed, you can win. So payment is one possible defense. Other defenses include:

1. Charges made to the card were not authorized or were fraudulent. Did someone else use your card without authorization? Did a vendor charge you for goods or services they never delivered? If you can prove fraudulent or unauthorized charges, you can beat Midland in court.
2. You disputed the bill soon after you got it. This can be one way of showing unauthorized or fraudulent charges, and it can also defeat an “account stated” claim because part of that claim requires the absence of an objection. If you show that you objected within a reasonable time, you can defeat the account stated claim.
3. The account is not yours. Did someone commit identity theft and open an account in your name without your permission? Did Midland simply sue the wrong person—especially if you have a common name? If you can prove the account is not yours, you can win.

This cannot be, and is not meant to be, a complete list of defenses. Every case is unique, and you may have defenses based on the particular facts of your case.

What defenses never work when fighting a Midland lawsuit?

There are a lot of myths about fighting lawsuits from debt collectors like Midland. Most of these involve defenses that never work because they are based on a misunderstanding of the law.

1. “I don’t have a contract with Midland.” This doesn’t work because the law allows creditors to sell accounts and debt buyers to buy them. Midland doesn’t need to show a contract directly between you and Midland. Instead, Midland needs to prove that it acquired the right to collect the account.
2. “There’s no wet-ink signed contract.” This doesn’t work because modern credit cards, and many other types of loans, don’t use signed contracts. Sometimes you agree by clicking on a website. Sometimes you agree by using the card after it is mailed to you with a copy of the terms. But almost no one signs a traditional paper contract for a credit card today. Judges know this and will reject a defense based simply on the absence of a signed paper contract.
3. “I don’t have any money they can take.” This isn’t a defense, it’s a confession. (“No money? Well, no wonder you didn’t pay your bills,” the judge will think.) Even if you have no money they can take, the judge will still have to enter a judgment against you, and you might find out years later, when they garnish your wages or seize a bank account, after you’re back on your feet, just how bad this “defense” can be.

What documents do you need to beat Midland?

First, you want to find out whether Midland has all the evidence it needs to prove its case. You’ll want to ask Midland, as early as possible, for every document it intends to introduce into evidence. Then you can review those documents to see whether Midland is missing evidence for any part of the case it needs to prove. Remember, Midland will almost never have a witness who was personally involved in the original transaction, so if Midland doesn’t have a document supporting part of its claim, it probably can’t prove it.

Second, you’ll need the documents you intend to use to prove any affirmative defenses you raise, and most of these are going to be in your control, not Midland’s. Are you alleging payment? Bring your canceled checks or payment records. Are you claiming you objected to the debt before Midland filed suit? Bring a copy of the letter or email you sent. Are you alleging identity theft or fraud? Bring a copy of any police report you filed or Identity Theft Affidavit you submitted. Think Midland mixed you up with someone else? Bring your identification documents so you can show how your information differs from the details in the account records.

The right documents can help you prove your defense and win.

Can you file a counterclaim against Midland?

Of course! We do this all the time. Debt collectors have a duty to obey federal and state laws regulating debt collection. Federal law alone lists 53 ways debt collectors can break the law. And if Midland breaks the law, you may be able to countersue, sometimes for a lot more money than Midland is trying to collect from you.

And the best part is, if there’s a real violation in your case, you can hire a lawyer for free. (No costs or fees upfront, and none at all unless we win for you).

Can you send Midland a dispute letter after Midland sues you?

Yes, you can send a dispute letter after Midland sues you, but that’s probably far too late to do you any good in defending the lawsuit. If you sent a dispute before Midland sued you, however, that might be evidence that you objected to the debt. And if Midland received your dispute and later sued you without first providing a required validation response, if federal law required one under the circumstances, that might give you a reason to countersue for violating federal law.

So a properly timed dispute letter can help, but sending one after you’ve already been sued is usually too late to help you defend the lawsuit.

Who is Midland Credit Management and why are they suing me?

Midland Credit Management is a debt collector and a junk-debt buyer. You probably never borrowed any money from Midland, opened an account with Midland, or even heard of Midland before they started sending you letters or filed a lawsuit against you.

Instead, Midland collects accounts it bought from some other lender. When a bank or credit card company thinks you’re not going to be able to pay, it will mark the account as a “charge-off” and sometimes sell it to a debt buyer like Midland, which then tries to collect.

That’s why Midland is suing you. Midland claims it bought the right to collect the debt and is asking the court to make you pay it. But buying an account and filing a lawsuit aren’t the same thing as proving the case. Midland still has to prove that this is your account, how much you owe, that it has the right to collect it, and all the other parts of its claim.

Watch the video below for more about who Midland is, how it gets these accounts, and why it files lawsuits to collect them.

Should I settle with Midland?

Danger! Don’t settle with Midland unless you know exactly what you’re agreeing to—it’s why we often tell people “Don’t pay a dime to Midland!”

Settlement can be tempting because it promises an easy way to make the lawsuit—and the stress of going to court—go away. But Midland has a huge advantage over you: Midland has sued thousands, if not millions, of people just like you, and they’ve had years to develop tricks and traps designed to squeeze money out of people when they least expect it.

We see too many people enter into payment agreements with Midland because the monthly payment sounds affordable. But those agreements can blow up in your face if you don’t understand the terms. A small monthly payment that lasts forever might not be nearly as good a deal as it sounds.

Many payment agreements have a kicker: if you miss even one payment, no matter how good your reason, it can be game over. Bank error? Game over. Temporary illness or injury? Game over. Tax problem? Game over. Fired for no good reason? Game over. Global shutdown due to an unforeseen pandemic? Game over.

Before agreeing to a settlement, find out exactly how much you’re agreeing to pay, when every payment is due, what happens if you miss a payment, whether Midland can get a judgment against you if you default, and how much that judgment can be. A missed payment on what looked like an affordable settlement can sometimes leave you facing a judgment for much more than you expected.

So don’t settle just because you’ve been sued. First find out what kind of case Midland actually has against you and what your other options are. If settlement still makes sense, make sure you understand every important term before you agree to it.

What happens if Midland gets a judgment?

A judgment changes everything. Before Midland gets a judgment, it is trying to prove that you owe it money. After Midland gets a judgment, the court has already decided that you owe the money, and Midland can start using the power of the court system to try to take that money from you.

That’s when Midland can start looking for your assets. Where do you work? Where do you bank? Do you own a car? Do you own real estate? Once Midland has a judgment, it can seek to garnish wages, seize bank accounts, and take property like your car or real estate.

That doesn’t mean Midland can take everything you own. Florida law protects certain wages, money, and property from creditors, and whether Midland can take something depends on what it is and your particular circumstances. But once there’s a judgment, you’re no longer just defending a lawsuit—you’re dealing with a creditor that has powerful legal tools it can use to collect from you.

That’s why the best time to fight Midland is usually before it gets a judgment. It’s much better to stop a judgment in the first place than to spend years worrying about what Midland might try to take afterward.

Can Midland garnish your wages?

Yes, if Midland gets a judgment against you, it may be able to garnish your wages. Midland can send court papers to your employer that require them to freeze a portion of your paycheck and hold it for Midland.

But Florida law does allow some protections from wage garnishment, and if you know what they are and how to qualify for them, you may be able to beat wage garnishment altogether. For example, if you qualify as a “head of family” under Florida law, your wages may be completely protected from garnishment. Other people may also have limits on how much of their wages can be taken.

If Midland tries to garnish your wages, they have to send you a notice of your right to claim an exemption, and if you qualify for one of those exemptions you’re likely to get all your wages back. But that can take time.

Can Midland drain your bank account?

Yes. If Midland gets a judgment against you, it may be able to garnish your bank account. Midland can send court papers to your bank that require the bank to freeze money in your account and hold it for Midland.

And bank garnishment can hurt. You might find out about the garnishment when your debit card suddenly stops working, your rent or mortgage payment bounces, or you log into your account and discover that money you were counting on has been frozen.

But just like wage garnishment, Florida and federal law protect some money from creditors. Depending on where the money in your account came from, some or all of it may be exempt from garnishment. For example, certain Social Security benefits and other protected funds may be exempt, and wages that were protected before you deposited them may sometimes remain protected after they reach your bank account.

If Midland garnishes your bank account, you’ll have an opportunity to claim any exemptions that apply to your money. If you prove that the frozen money is exempt, you may be able to get it released. But just like a wage garnishment, that can take time—and meanwhile, you may not have access to money you need to live.

Can Midland take your car or other property?

Yes. If Midland gets a judgment against you, it may be able to use the court system to take some of the property you own. This is called a “levy.” A sheriff can seize property that isn’t protected by law, sell it, and use the money from the sale to pay Midland’s judgment.

But that doesn’t mean Midland can take everything you own. Florida has important exemptions that protect certain property from judgment creditors. Your home may be protected by Florida’s homestead exemption, and Florida law also protects certain amounts of personal property and the value of a motor vehicle.

And there’s another practical problem for Midland: taking property costs money. If your car has a loan against it, isn’t worth very much, or is protected by an exemption, there may be little or nothing left for Midland after everyone else gets paid. Just because Midland has a judgment doesn’t mean every piece of property you own is worth trying to take.

But don’t assume your property is safe just because Midland hasn’t tried to take it yet. A judgment can stick around for years, and property that isn’t worth going after today might be worth going after later.

Can Midland put you in jail?

Almost never. There’s no such thing as debtor’s prison in America, and you cannot be sent to jail just because you owe Midland money or because you can’t afford to pay a judgment. This is a civil debt-collection lawsuit, not a criminal case.

But you CAN go to jail if you ignore court orders. This can come up if the judge orders you to provide financial information and you stubbornly refuse to cooperate. A judge can find you in contempt of court and in extreme cases, send you to jail for contempt. But it’s very rare for that to happen.