donim74

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About donim74

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  1. Maybe it's something here in 901 or 902 http://www.courts.state.tx.us/rules/tre/tre-all-010107.htm#rule901 The Judge did mentioned something in the 900's.
  2. I don't know how to answer the questions here. However, I objected to EVERYTHING presented by the plaintiff as heresay, and I was overruled on all of it. I don't know exactly what changed, but from the first overrule, I knew I had ZERO defense in this case. I was baffled on how this was all allowed as true. No I didn't make an affidavit. I was trying to figure this all out. I received their discovery just shy of a week before the trial. I was scrambling trying to figure out how to do my objections. Up until the trial I thought I was fine. I objected to: Bill of sale (this did not reference my account or my name) Affidavit of sale - (This did not reference my account or my name) Midland submitted a data sheet that had my name phone number address acct etc. This was printed by Midland. I objected this as heresay as well. this had no info from Chase on it, and it was a piece of paper from Midland that said we got this from a data file. Statements from Chase - I objected as heresay. They didn't prove that I owed anything to Midland, and without a witness from Chase to authenticate these statements, they were heresay. Affidavit from Midland Employee - I objected to multiple statements the employee made, as they claimed to know How Midland keeps and maintains records. My objections to this were, the Midland employee would have no way to know the accuracy of the records as they are not an employee of Chase and have no knowledge of Chase's record keeping procedures, or protections in place to ensure the accuracy. I tried to attack procedures. (I didn't realize i had to submit an affidavit to deny, until the day of.) I did the best I could with the time I had, and take full responsibility of course. I'm not stating that I received any wrong info here...you guys have been extremely knowledgeable and I learned alot. I'm not sure I have an answer as to how all of the heresay was allowed to be admitted, bur from the first overrule I received, it took every bit of wind out of my sails, and quite frankly I didn't know what to think or do at that point. The attorney and Judge both basically said a month ago, this was the right way to attack Midland's case. I honestly don't fully understand what happened in this case. I posted to the best of my understanding to help ensure nobody else gets blindsided by this. Hopefully this can help someone in the future. Maybe a change in the exception? If this is all accurate and true, this is only going to make companies like Midland, go even more nuts on the lawsuits....if this junk "evidence" is allowed. I only posted my failure to hopefully help someone else.
  3. Just got out. I lost. Something I didn't realize in the change of the law a month ago. All of their heresay documents could not be objected to. All I can say is if you are in Texas, read up on this. Both the judge and the Attorney for Midland both said to me afterwards, that a month ago, I would have been right on track. For what it's worth Midland's attorney said he would have attacked the documents just like I did. But whatever changed blew out my defense. My ignorance cost me. All of my objections due to heresay were overruled. On the affidavit from the Midland rep, I did reference State of MN vs Midland and their robo-signing affidavits and falsely filing, to help cast doubt on them, but it was all for nothing. Texas people read up on this, it could mean my fate if you don't. Unless you're ok with praise from the judge for reading and putting in the work / research, but still losing. Best of luck to anyone that finds this thread helpful in what not to do during trial. Thank you to everyone that provided me details on how to get through this, I appreciate you all (Flyerfan, Racecar, etc.) Live and learn hard lessons sometimes. Oh well, life moves on.
  4. Well at this point I'm super scared and stressed. I have a court date on Tuesday. I'm still feeling unprepared. I'm reviewing the docs flyerfan and racecar suggested to punch holes or cast doubt on the robo-generated affidavit where my account is mentioned. I just received this earlier this week, and go to court in a couple days. I've never been to court and I know looking on the net will yeild me answers (and I AM looking), but I beg, if anyone can let me know from their past court experience, does the Plaintiff attorney go through these affidavits and statements and say ok, see here's the proof he owes. Do I wait until he's done to have my say about each item? For example: One affidavit states that Chase sold accounts to Midland. Nothing specific about me or my account is mentioned. Do I object once he offers this to the judge, stating that the document has no mention of me and/or my account, or do I wait until it's my turn. Can anyone offer me advice on how the actual "trial" may go? I'm sorry if this comes across as lazy (I do not mean for it to), but like most, I work a 40+ hr job, and I'm doing my best to try to be ready, but I feel i'm in for a world of hurt, since they issued the court date while i was waiting on my discovery from midland. It gave me a week basically to see what they had and to put this all together. Thank you to EVERYONE who has had some input for me up to this point. I cannot thank you enough.
  5. Thank you Flyerfan, I will get started. I appreciate your feedback!
  6. Ok, below are the docs sent back from my discovery. The bad news is my trial date is Tues. Oct. 8. I just got these docs. Now I scramble to make sense of it. If anyone has any insight, I would appreciate your time. They also sent about 8 copies of statements. Sorry in advance for any typos. I did this as fast as I could….since I’m about out of time. Affidavit of Legal Specialist: (I’ll refer to as LS going forward) LS, whose business address is XXXXX St. Cloud, MN 0000, certifies and says: (NOTE: Dont know why all these points got re-numbered after I pasted here) I am employed as a Legal Specialist and have access to pertinent account records for Midland Credit Management, Inc. (“MCM”), servicer of this account on behalf of plaintiff. I am a competent person over eighteen years of age, and make the statements herin based upon personal knowledge of those accounts records maintained on plaintiff’s behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant’s CHASE BANK USA, N.A. account XXXXX (MCM Number XXXXX) (hereinafter “the account”). I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on plaintiff’s behalf. I am familiar with and trained on the manner and method by which MCM creates and maintains its business records pertaining to this account. The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record or compilation is made at or near the time of the act or event. The relevant financial information concerning the account includes the following”MCM’s records show that the account was charged-off on 2010-10-31 with a balance of $3348.64. On or about 2012-05-30, plaintiff purchased and was assigned the balance owed by defendant of $3348.64. As of 2013-5-14, MCM’s records show that the balance of $3348.64 remains due and owing and $191.95 was interest subsequently assessed to the account at the rate of 6.0000% simple interest per annum. Therefore, plaintiff seeks the amount of $3540.59 from defendant. All credits and offsets for payments have been applied to the balance.On or about 2012-5-30, the account was sold from CHASE BANK USA, N.A. to Midland Funding LLC. The account was then sold to the following debt buyers in order of occurrence on our about: Not ApplicableAttached hereto are records regarding the account and/or payment(s) received. The documents attached hereto, are true and correct copies of the originals, being a reproduction from the records on file on behalf of plaintiff based upon my review.MCM acquired and incorporated the attached account records into its permanent business records as a result of plaintiff’s purchase of the account. These records are kept in the regular course of business on behalf of plaintiff, and along with the electronic records provided at purchase, are plaintiff’s primary source of business records for this account.The accuracy of such documents are relied upon by Plaintiff and/or its servicer in purchasing and collecting this account. These records are trustworthy and relied upon because the original creditor was required to keep careful records of the account at issue in this case as required by law and/or suffer business loss.I certify under penalty of perjury that the foregoing statements are true and correct. Signed LS State of Minnesota County of Stearns Affidavit of sale of account by original creditor State of New York, County of Nassau ML being duly sworn, deposes and says: I am over 18 and not a party to this action. I am an officer of JPMorgan Chase Bank, N.A. and am authorized by Chase Bank USA, N.A. to execute this affidavit. In my position, I am aware of the process of the sale and assignment of electronically stored business records. On or about 5/22/2012, Chase Bank USA, N.A. sold a pool of charged-off accounts (the “Accounts”) to Midland Funding LLC. (“Buyer”) under a Purchase and Sale Agreement and a Bill of Sale between Buyer and Chase Bank USA, N.A. As part of such sale, electronic records and other records on individual accounts included in the Accounts were transferred to Buyer. These records were kept in the ordinary course of business of Chase Bank USA, N.A. I am not aware of any errors in the Accounts. The above statements are true to the best of my knowledge. Signed ML BILL OF SALE (Chase logo in upper right corner of document) Closing Date: 05/30/2012 Chase Bank USA, N.A. (“Seller”), for value received and pursuant to the terms and conditions of Credit Card Account Purchase Agreement dated 12/28/2011 between Chase Bank USA, N.A. and Midland Funding LLC (“Purchaser”), its successors and assigns (“Credit Card Account Purchase Agreement”), hereby assigns effective as of the File Creation Date of 05/22/12 all rights, title and interest of Seller in and to those certain receivables, judgments or evidences of debt described in the Final Data File, entitled (Account’s Primary File Name) attached hereto and made part hereof for all purposes. [bLACKED OUT BOX HERE] Amounts due to Seller by Purchaser in hereunder shall be paid U.S. Dollars by a wire transfer to be received by Seller on (the “Closing Date”) 05/30/2012 by 2:00pm Seller’s time, as follows: [bLACKED OUT BOX HERE ] This Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an Exhibit. No other representation of or warranty of title or enforceability is expressed or implied. With respect to account information for the Accounts listed in the Final Data File, Seller represents and warrants to Purchaser that (i) the Account information is complete and accurate; (ii) the Account information constitutes Seller’s own business records and accurately reflects in all material respects the information in Seller’s database; (iii) the Account information was kept in the regular course of business; ( iv) the Account information was made at or near the time by, or from information transmitted by, a person with knowledge of the data entered into and maintained in the Seller’s database; and (v) it is the regular practice of Seller’s business to maintain and compile such data. Signed by Team leader (Chase) and Midland President
  7. oops...one more to question 1. c) If I hold off on my responses, should I request any type of continuance motion since Midland will have 30 days to reply to my discovery as well, or would that depend on the trial date that is set by the court, whether or not I would need to ask for more time?
  8. Thank you, thank you.....and thank you! I have a couple of questions: 1. The pre-trial date is set for next Tuesday 8-27-13. I received the discovery from Midland last week. I have 30 days to respond to them, but the 30 days will be after the pre-trial date. a) Should I hold off on sending my reply to their discovery until after the pre-trial? Should I hold off on sending my request to them until after the pre-trial? My understanding is that the pre-trial was to work out things like when we would be doing discoveries, but they put me on the clock, by sending it last week. So I'm not sure how to handle this part. 2. They included their request for disclosure in with the discovery they sent me. a) Do I need to send my Discovery to them and the request for disclosure in the same letter as they did, or do they need to be submitted separately? Since this is discovery, this just goes between myself and the Midland, and I do not need to file this with the court. Am I correct? Thanks again to everyone who has replied to my thread. I truly appreciate your assistance, more than words can relay.
  9. Sorry RC, yes they did. Pursuant to Rules 190.2.((6) and 194 , Plaintiff requests the following disclosures from Defendant: Rule 190.2((6): Disclose all documents, electronic information and tangible items that the disclosing party has in it's possession, custody, or control and may use to support it's claims or defenses. Rule 194: a) the correct names of the parties to the lawsuit; the names, addresses and telephone numbers of any potential parties; c) the legal theories and, in general, the factual bases of the responding party's claims or defenses (the responding party need not marshal all evidence that may be offered at trial); d) the amount and any method of calculating economic damages; e) the name, address and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case; f) for any testifying expert: (1) the expert's name, address and telephone number (2) the subject matter on which the expert will testify (3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information; (4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party: (A) all documents, tangible things, reports, models or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and ( the expert's current resume and bibliography; g) any indemnity and insuring agreements described in rule 192.3(f) h) any settlement agreements described in Rule 192.3(g) i) any witness statements described in Rule 192.3(h);
  10. Hi Flyerfan, I alredy answered the suit. Within 2 days I received a letter from the court informing me of my pre-trial date of 8-27.
  11. My main question for now is, My pretrial date as set by the court is next Tuesday. Last week, I received a discovery request from Midland. I'm supposed to have 30 days to respond to this, but again pre trial is next week. Do I have to have my reply to their discovery in before on on the pre-trial date? I am putting my discovery for them together as well. If we don't have this done, I don't understand how we can proceed with a pre-trial. I don't know what they have or don't have yet to even discuss with them? Sorry...I'm in a panic, and I'm sure there were 100 steps I should have done prior to today, but I was ignorant to most of this and just found your site. Hoping I can get some help. Their Discovery consists of Admit/Deny for the following: 1. Plaintiff properly named Defendant in Plaintiff's Original Petition 2. Defendant requested to open an account with CHASE BANK USA, N.A. and entered into a contract with CHASE BANK USA, N.A. on or about April 04, 2004. 3. Defendant agreed to repay all charges or cash advances incurred, or amounts due incurred by the use of Defendant's CHASE BANK USA, N.A. credit card account per the terms of the contract. 4. Plaintiff has performed all conditions precedent, or all conditions precedent have occurred, necessary for Plaintiff to bring suit on the contract. 5. Pursuant to the terms of the contract agreed to between Defendant and CHASE BANK USA, N.A., CHASE BANK USA, N.A. is expressly authorized to charge Defendant both a late fee each month Defendant's payment is not received by the due date and an "over limit" fee when Defendant's monthly balance exceeds the Defendant's credit limit. 6. Defendant received goods, services, or cash advances by using Defendant's credit card account with CHASE BANK USA, N.A. 7. Defendant received monthly statements from CHASE BANK USA, N.A. at the address Defendand provided to CHASE BANK USA, N.A. showing the minimum monthly payment required. 8. CHASE BANK USA, N.A. specifically advised Defendand of his/her right to dispute any billing error on each monthly statement provided to Defendant. 9. CHASE BANK USA, N.A. offered an extension of credit to Defendant that has not been rescinded by either party, in exchange for Defendant's promise to repay the credit. 10. Defendant made payments on Defendant's credit card account with CHASE BANK USA, N.A. 11. CHASE BANK USA, N.A. fully performed all its contractual obligations required by the contract between CHASE BANK USA, N.A. and Defendant. 12. Defendant breached the contract by failing to repay all sums due as required by the contract between Defendant and CHASE BANK USA, N.A.. 13. Plaintiff made written demand for payment of the outstanding balance to Defendant prior to filing suit, and Defendant refused or failed to pay Plaintiff the outstanding balance. 14. The dollar amount due on the account statement attached to Plaintiff's Original Petition is just and true and remains unpaid. 15. Plaintiff has applied all just and lawful credits and offsets to your account and the current amount of $3348.64 is currently due and payable from Defendant to Plaintiff. Note on number 15...Their Original petition shows the alleged $3348.64 owed, but they also allege late fees of $191.95 for a total of $3540.49 due, but in number 15, they didn't add the "late fee". Not sure that matters or not that their figures dont match? Suggestions on response please?
  12. 1. Who is the named plaintiff in the suit? Midland Funding 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Listed as Midland Funding. Attorneys listed at end under Midland Funding LLC are, Kristy Gabrielova, Brian Staley, Katharine Banks, Andrew Herreth. 3. How much are you being sued for? $3540.59 4. Who is the original creditor? (if not the Plaintiff) Chase 5. How do you know you are being sued? (You were served, right?) Yes, I received papers 6. How were you served? (Mail, In person, Notice on door) In person 7. Was the service legal as required by your state? To my knowledge Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I recall 9. What state and county do you live in? Texas - Tarrant County 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) I don't recall. The statement they enclosed states 2010. 11. What is the SOL on the debt? To find out: 4 years Statute of Limitations on Debts 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).The suit has been served. I have answered my suit. I received a pre-trial date for next Tuesday (8/27/13). The attorney sent me discovery last week (Just 2 weeks before pre-trial) 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? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They attached a statement from November 2010.