matt-in-oregon

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Everything posted by matt-in-oregon

  1. UPDATE: I talked the wife into showing up for the "Pre-Trial Conference" They set the Trail for September. The Plaintiff said they would "Motion for Summary Judgement" since they claim they own the debt and already proved chain of title, etc.
  2. Is there any way to re-schedule a "Pre-Trial Hearing?" Motion for Enlargement of Time. Wife is booked all week. EDIT: No, I'm going to make her go. Always show up in Court!!! That may be all it takes. These JDB's are just looking for default and may not want to fight. Plus, I found ASTmedic's win and it's excellent. Thanks for the tip. http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/
  3. This thread that's pinned? Start To Finish Winning Against Midland Funding Aka Jdb! http://www.creditinfocenter.com/community/topic/292720-start-to-finish-winning-against-midland-funding-aka-jdb/
  4. OK, with this case we file for >>> NOTICE OF APPEAL FROM ARBITRATION AWARD AND REQUEST FOR TRIAL DE NOVO THIS Wednesday coming up is our "Pre-Trial Hearing." Ultimately what we want to do here is have Midland prove EVERYTHING. (Which they cannot do!) What are our next steps? What do we need to prepare for the "Pre-Trial Hearing?" Requests for Admissions? Requests for Documents? I found some GREAT ideas in this thread: http://www.creditinfocenter.com/community/topic/319887-cavalry-vs-me-in-washington-state/
  5. Here's an update on this case. I need a little advice (see below) Thanks. Here’s a re-cap of the Case: * Case complaint was from the OC (NOT a JDB) via OC’s lawyer. * AFTER I sent a Debt Validation letter, another lawyer firm sent me a bunch of random papers, but no real solid evidence. * I answered OC’s complaint and DENIED everything. * This case has since been transferred to ARBITRATION. * The strategy is to APPEAL if I lose in Arbitration. And I probably WILL lose in Arbitration. LOOK AT THIS! >>> I got a letter from the Plaintiff's Lawyer requesting me to do 2 things: 1) Admit or deny a bunch of stuff 2) Produce documents So, basically I answered their COMPLAINT by DENYING EVERYTHING and now they are requesting that I ADMIT or DENY a bunch of questions/facts. PLUS, they want me to cough up all related applications/contracts/documents... Here's how I think I should respond. Any advice is much appreciated. Thanks. >>> PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSIONS 1. Admit that you had a credit account with Plaintiff. ANSWER: Defendant lacks sufficient information about the accuracy of this information or debt validation provided from Original Creditor to form a belief as to the truth or falsity of this statement and therefore denies. 2. Admit that you received a copy of the terms for the credit account. ANSWER: Defendant does not have in his possession any terms for a credit account provided from Original Creditor and therefore denies. 3. Admit that under the terms of the Account, you agreed to pay for the credit balance on the account. ANSWER: Defendant does not have in his possession any terms if the Account provided from Original Creditor and therefore denies. 4. Admit that you used the Account to obtain goods, services, or money. ANSWER: Defendant lacks sufficient information about the accuracy of this information or debt validation provided from Original Creditor to form a belief as to the truth or falsity of this statement and therefore denies. 5. Admit that you received periodic statements from Plaintiff regarding your account. ANSWER: Defendant does not have in his possession any periodic statements provided from Original Creditor and therefore denies. 6. Admit that you did not object in writing to any charges or fees on the Account within 60 days of the receipt of the periodic statement. Reflecting and allegedly disputed charge/fee. ANSWER: Defendant lacks sufficient information about any charges or fees from the Original Creditor and therefore denies objecting in writing to any charges or fees. 7. Admit that you stopped making payments on the account. ANSWER: Defendant lacks sufficient information about any account from the Original Creditor and therefore denies. 8. Admit that you were notified that your account was in default. ANSWER: Defendant does not have in his possession any notification that any account was in default with Original Creditor and therefore denies. 9. Admit that you are indebted to the Plaintiff for the full current Account Balance. ANSWER: Defendant lacks sufficient information about the accuracy of this information or debt validation provided from Original Creditor to form a belief as to the truth or falsity of this statement and therefore denies. 10. Admit that you have no evidence to disprove or defend against Plaintiff’s claims in the action. ANSWER: DENY. No debt validation was provided from Original Creditor so therefore Defendant denies that he has no evidence to disprove or defend against Plaintiff’s claims in the action. PLAINTIFF’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS 1. Any documents that relate or refer to the Plaintiff’s claims or your defenses in this Action. ANSWER: Defendant is unaware of any documents, therefore, Defendant is unable to provide Plaintiff with said documents. 2. Any agreements, applications, statements, receipts, proofs or payment or other documents related to the Account. ANSWER: Defendant is unaware of any documents, therefore, Defendant is unable to provide Plaintiff with said documents. 3. Any correspondence with Plaintiff regarding the Account or this Action. ANSWER: Defendant is unaware of any documents, therefore, Defendant is unable to provide Plaintiff with said documents. 4. Any correspondence with anyone related to this account, including without limitation, any witnesses, professionals, and experts (whether they have been retained to testify or not). ANSWER: Defendant is unaware of any documents, therefore, Defendant is unable to provide Plaintiff with said documents. 5. Any documents you may present as evidence or exhibits in a trial of this Action. ANSWER: Defendant does not intend to introduce any documents at the time of trial. However, Defendant reserves the right to provide plaintiff with such documents as may become available prior to the time of trial. 6. Any reports or exhibits prepared by any expert or lay witnesses pertaining to this Action. ANSWER: Defendant does not intend to introduce any documents at the time of trial. However, Defendant reserves the right to provide plaintiff with such documents as may become available prior to the time of trial.
  6. Hi Huey Pilot, Yes, we got a letter saying we need to attend a "Pre-Trial Hearing" on June 5, 2013. Should be fun. Thanks, Matt
  7. As per their rules: Oregon Statutes - Chapter 36 - Mediation and Arbitration - Section 36.425 - Filing of decision and award; notice of appeal; trial de novo; attorney fees and costs; effect of arbitration decision and award. We filed a “notice of appeal and request for a trial de novo” >>> IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF DESCHUTES MIDLAND FUNDING, LLC, Plaintiff, v. [DEFENDANT NAME], Defendant )))))))) )) ) ) ) Case No. CV-XXXXXX NOTICE OF APPEAL FROM ARBITRATION AWARD AND REQUEST FOR TRIAL DE NOVO [DEFENDANT hereby gives notice of appeal from the arbitration award filed on April 16, 2013 and requests a trial de novo on all issues of law and fact. DATED this 6th day of May 2013. Signed [DEFENDANT]
  8. Thanks Huey Pilot and USCTrojanAlum, I'll Google it and write up the Motion today/tomorrow and file the Trial De Novo ASAP. Thanks for your help!
  9. PS: Here is the decision from the Arbitration Attorney >>> The following is my decision regarding the arbitration hearing that was conducted on [DATE]. The basic facts of the case can be summarized as follows. [DEFENDANT] initially acquired a credit card through Washington Mutual Bank and used the card and incurred debt. In September 2008 Chase Bank acquired Washington Mutual Bank and acquired all of Washington Mutual’s credit card accounts. [DEFENDANT] testified that she continued to use the credit card and make charges on it when the card became owned by Chase Bank. On July 14, 2010 Chase Bank sold or assigned its rights to collect debts owned on the account to Hilco Receivables LLC. In December 2009 Hilco Receivables merged with Equable Ascent Financial, LLC so that Equable and Hilco had the right to collect on the debt owed by defendant, [DEFENDANT]. On May 14, 2012 Equable Ascent sold the debt on the account to plaintiff Midland Funding, LLC. Defendant had no evidence to indicate that any of these assignments or sale of the debt were not proper or violated any agreement. Based on the evidence produced to me by plaintiff, the assignment of the debt to Midland Funding was proper and the collection of the debt can be enforced by plaintiff, Midland Funding, LLC. Defendant did not issue any written complaints about the debt not being owed to Midland Funding or any of its predecessors who held the debt. The last payment she made on the credit card was April, 8 2010 and she testified that she made that payment to Chase Bank so that through her conduct she acknowledged and agreed to an assignment of the debt to Chase Bank. There were no objections to any of the later assignments of the debt to the other three parties listed above, including the plaintiff. The defendant further testified that she had received the statements at her former address on [ADDRESS]. Defendant’s arguments are: (1) plaintiff did not supply her with a copy of the contract with Washington Mutual (OC), (2) she does not have a contract with plaintiff, Midland Funding, (3) the complaint is in error as it indicates the contract was issued by Chase Bank and she contends it was issued by Washington Mutual Bank, and (4) she contends that the Fair Debt Collection Practices Act under Section 1692E was violated. Defendant did not raise the FDCPA as either an affirmative defense or a counterclaim in her Answer pleading. Therefore, there is no FDCPA counterclaim before me to consider and I cannot make a ruling on that issue. I have reviewed 15 USC 1692E regarding false or misleading representations and I do not find that any of those provisions apply to the activities engaged in by plaintiff. So even though defendant did not raise violation of FDCPA as an affirmative defense, I do not find that there is any evidence that would support that defense. Whether or not a written contract still exists between defendant and Washington Mutual or Chase Bank does not prevent plaintiff from pursuing its breach of contract claim. Plaintiff is correct that the case of Citibank v Santoro, 210 Or. App. 344, 150 P3d 429 (2006), rules that a creditor does not have to produce a copy of the contract or credit application to establish the existence of a valid credit card debt. The conduct of the parties establishes the contract so that when a creditor (Washington Mutual and Chase Bank) issues a credit card to the defendant/debtor and the debtor then uses the card and retains it, then the card itself constitutes a formal and binding contract. [DEFENDANT’S] conduct in using the card constitutes mutual assent to the terms of the credit card agreement and she is obligated to pay the debt owed through her use of the card. Plaintiff produced evidence through the exhibits and testimony of witness [WITNESS] that [PLAINTIFF] used the card even after the card’s ownership was transferred to Chase Bank and, therefore, she assented to owing the debt incurred by her used of the card. Plaintiff provided evidence that the balance owed was $7,XXX.XX in April 2010 and they are not seeking any prejudgment interest. The final question concerns the Complaint which originally alleges the credit card was originally issued by Chase Bank but instead it was issues by Washington Mutual. Plaintiff’s counsel moved to amend the pleadings to conform to the evidence which clearly shows that Washington Mutual was the original creditor and the evidence further shows that Chase Bank acquired Washington Mutual including the credit card account it had with defendant. Plaintiff’s motion to amend the pleadings is granted and further the error in not naming Washington Mutual as the original creditor was not prejudicial to defendant as the parties, through their conduct, know and acted under the belief that Chase Bank had acquired Washington Mutual. I am awarding plaintiff’s damages in the amount of $7,XXX.XX. I am further awarding post-judgment interest at the statutory rate of 9% per annum and plaintiff’s costs. If defendant has an objection to the cost bill already presented by plaintiff, then she should submit her written objections within ten days of the date of this letter. If there is no dispute over the costs, then I will immediately prepare and submit an arbitration award to the court. Sincerely, Mr. Arbitration Attorney
  10. Hello. My wife got a Complaint filed against her for an older credit card. The Complaint had a major error in it. It stated the original creditor was Chase Bank when it was actually Washington Mutual Bank. But, my wife lost in Arbitration. HELP! We lost "round 1" (arbitration), but I want to beat these guys and will need to take this to "round 2" HERE ARE THE FACTS: 1. Who is the named plaintiff in the suit? Midland Funding, LLC 2. What is the name of the law firm handling the suit? Suttell & Hammer, P.S Bellevue, WA 3. How much are you being sued for? $7,XXX.XX 4. Who is the original creditor? (if not the Plaintiff) Washington Mutual (but Plaintiff’s Complaint stated Chase Bank!) 5. How do you know you are being sued? Process server at the door. 6. How were you served? 7. Was the service legal as required by your state? Yes. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Yes, Suttell & Hammer sent a debt collector letter. 9. What state and county do you live in? Oregon 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) April, 2010 11. What is the SOL on the debt? To find out: We're within the SOL (I believe) 12. What is the status of your case? LOST in Arbitration 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency? NO 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. NO 15. How long do you have to respond to the suit? We already LOST in Arbitration. We have til March 6th to file an APPEAL / TRIAL DE NOVO. Or we can SUE THEM in Federal Court. I want to fight them til the end. Thinking of APPEALING / Trial De Novo or SUING THEM in FEDERAL Court. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. NOTHING is attached. Any advise will be GREATLY appreciated. Thank you!
  11. Hi Huey Pilot, Wow, thanks for posting that template and all that helpful info. I'll do it just like you said. Plus, my wife just lost her butt in arbitration so we can use your steps above to take that one to the next level (appeal). We're done with credit cards and JDBs.
  12. Thanks shellieh98, Yes, I checked my credit report and the account has been charged off/is in collections I filed a "Motion for Enlargement of Time" 3 weeks ago and now it's time for me to answer. (Friday)
  13. Hello. I'm new here... and I'm new to beating JDB's. I received a Summons that has started much research and ultimately led me to this website via Google. The people on this website are obviously VERY knowledgeable. HELP! I want to beat these guys. HERE ARE THE FACTS: 1. Who is the named plaintiff in the suit? CAPITAL ONE BANK (USA), N.A. 2. What is the name of the law firm handling the suit? JOHNSON MARK LLC 3. How much are you being sued for? About $21,000 4. Who is the original creditor? (if not the Plaintiff) CAPITAL ONE BANK (USA), N.A. 5. How do you know you are being sued? Process server at the door. 6. How were you served? To my wife. 7. Was the service legal as required by your state? Yes. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None! They just came after me. Although earlier I did get a letter from a debt collector DOUGLAS REAM and sent him a DEBT VALIDATION letter. Then United Recovery Systems mailed me the statements. Now JOHNSON MARK is coming for me? I don't know what's going on. Crazy. 9. What state and county do you live in? Oregon 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) December 2012 11. What is the SOL on the debt? To find out: We're in the SOL 12. What is the status of your case? I need to "appear" and defend the Complaint by this FRIDAY. I need to submit paperwork THIS Friday. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency? NO 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. YES For this Credit Card I did get a letter from a debt collector DOUGLAS REAM and send him a DEBT VALIDATION letter. Then United Recovery Systems mailed me the statements. (Weird) Then... "WHAM" I got the summons below from JOHNSON MARK (I typed it out) 15. How long do you have to respond to the suit? This FRIDAY. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. NOTHING is attached. ########## IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF EL GUAPO CAPITAL ONE BANK (USA), N.A. Plaintiff, v. ME, Defendant Case No. 13XXXXXX COMPLAINT (Breach of Contract) Claimed Amount $21XXX.XX SUBJECT TO MANDATORY ARBITRATION Plaintiff asserts the following claims for relief against Defendant: 1. Jurisdiction and venue are proper. Plaintiff is a lawfully organized business engaged in interstate commerce. Defendant resided in the county in which this action has been filed. FIRST CLAIM FOR RELIEF (Breach of Contract) 2. Defendant is indebted to Plaintiff for credit extended to Defendant, Under the terms of the agreement between the Plaintiff and Defendant, Defendant acquired merchandise, services, and/or cash advances through the credit provided by the Plaintiff in conjunction with the credit account ending in XXXXXXXXXXXX4489. The Plaintiff performed its obligations to Defendant by providing the credit as agreed. 3. The Plaintiff mailed statements to Defendant, showing all charges, credits, payments, fees and finance charges incurred during each preceding month while Defendant credit account (“Account”) was open. Defendant did not object or otherwise dispute said statements within the time prescribed by 15 U.S.C. § 1666. The Plaintiff and Defendant thereby established a stated balance of Defendant’s Account. 4. Defendant agreed to make payments on the Account. Defendant breached the agreement with the Plaintiff by failing to make all payments as agreed. Such breach of agreement caused the Plaintiff to suffer damages in the amount of $21902.19 less any payment made. Upon default by Defendant, the Plaintiff requested full payment of the Account balance. 5. Further, more than twenty days before filing this action, written demand was made on Defendant for payment of all sums due, but the balance remains unpaid. SECOND CLAIM FOR RELIEF (Quantum Meruit) 6. IN THE ALTERNATIVE, Plaintiff pleads a claim of Quantum Meruit. Plaintiff incorporates into this claim paragraph 1. Principles of equity also require Defendant to pay for the benefit conferred on Defendant by the Plaintiff’s extension of credit. Defendant was fully aware of the benefit received. Under the circumstances, it would be unjust to allow Defendant to retain the benefit without requiring Defendant to pay the value thereof. WHEREFORE, Plaintiff prays for judgment against Defendant for the following amounts: * The Account balance of $21XXX.XX less any payments made. * Court costs. * Any other relief the Court deems just and equitable. DATE: February 4, 2013 JOHNSON MARK LLC ---------------- Attorney Name and OSB# ########## 1st Question: Is Capital One really the plaintiff OR is it Johnson Mark LLC? The "Plaintiff" says Capital One Bank (USA), N.A. and Johnson Mark LLC is the Attorney. But Johnson Mark LLC is a DEBT BUYER! If Johnson Mark LLC is LYING, this is a major FDCPA violation I can sue them for in Federal Court right? The reason I know they're a "Junk Debt Buyer" (JDB) is because I "Googled" them and that's what came up. Plus, the cover letter of the COMPLAINT says: "This communication is from a debt collector. If you wish to resolve this matter please call Johnson Mark toll-free at blah, blah, blah." 2nd Question: It would seem that my response should deny all knowledge of the debt, AND state that I have NO CONTRACT with Capital One / Johnson? 3rd Question: What should I state for affirmative defenses? Thanks in advance.