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turdfurguson4

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  1. Have you sent them a cease and desist letter? Send it certified - return receipt. Then it becomes like a legal document. Don't even bother trying to get anywhere with a debt collector over the phone. Everything has to be in writing for it to count for anything.
  2. Oh, one more thing that might be of interest to someone. I found, going through all the old Midland cases through the clerk of courts website / iphone app... that whenever a defendant has a lawyer, the majority of the time the defendant's lawyer will submit a motion for a "more definitive statement" from the plaintiff. For some reason this move seems to scare the plaintiff off a lot of times. Since my clerk of courts is now uploading case documents like answers and so forth, I will try to find one of these motions and copy and paste it here.
  3. Hi folks, Just wanted to let you all know how it went. Basically it was pretty anticlimactic. Midland gave the local attorney approval to dismiss the case over the phone right before we were to go in for the trial. We went in, Plaintiff dismissed without prejudice. Judge said "Well OK then", and dismissed. I didn't even open my mouth except to say "Thank you your honor". I'm not sure why they dismissed. I could have objected to the "without prejudice" and asked that it be dismissed with prejudice, but I didn't want to look a gift horse so to speak. I spent last night going over all the case law and court rules that I was relying on. But I also spent about 2 hours going back over all the midland cases that have come before my municipal court. I have an Iphone app called "courtwatch" that allows you to search and review court cases. It's actually a lot faster and more organized than the municipal court's website. But I looked at just about every midland funding case since 2008, and not even one ever went to trial - it was either a default judgement, dismissed, or settled. So I thought it really odd that my one case out of hundreds, for my paltry 800 dollars was actually going to trial. Well I hope this thread might be of use to another Ohioan... These are the main things you are looking at to get you started: Brown vs Columbus Stamping and Manufacturing - the grandaddy of Ohio case law that defines what must be present to qualify as an account... Zwick n Zwick vs Suburban construction Co. - Stipulates proof of an assignment when a debt / account is transfered. Ohio rules of evidence 802 - inadmissibility of hearsay Ohio rules of evidence 803 (6) - business exception to hearsay (Note the word "trustworthy") Ohio rules of evidence 901 - authentication of evidence Didn't need any of that though, I've found out twice now that more than half the battle is just to keep showing up, and keep meeting the deadlines of paperwork.
  4. Thanks for the info Almostfree, I did not know that. Nobk4me, thanks for the advice. In Ohio, a party has to make a request to the court to "leave" in order to submit a motion for summary judgement. The judge has already denied their request to leave.
  5. Back to my original question: Should I answer their request for summary judgement now - laying out my whole case for the judge and opposition to see... or should I wait for trial and submitt all that and make oral arguements. I doubt that the actual lawyers for the plaintiff will show up, the local attorney has pretty much said that he will be the one at the trial, and he pretty much told me that unless Midland coughs up a Target employee, they really don't have much of anything. Just want to say a big thank you to this awesome forum for helping me (unknowingly - I've been a lurker until today) with my first case against Portfolio (that one just petered out and they never followed through so it was just dismissed due to inaction), and now with this case. THANKS!!!
  6. I had started to respond to their request for summary judgement with just some quick notes, also I had started to outline my oral arguements for the trial: Plaintiff has failed to state a claim upon which relief can be granted - Civ.R.12 (6), and has failed to prosecute Civ.R.41 (1) Plaintiff contends that defendant broke agreement with Target National Bank, but has not provided any credit agreement into evidence other than an illegible copy that does not have signature of defendant. Plaintiff contends that defendant used the credit card to make purchases, but has not provided any account history to support that assertion. Plaintiff contends with Exhibit A that the account had a starting balance as of the date of the exhibit A statement of xxxxx, but there is no account history to support that beginning balance, and a beginning balance must be supported by a running account IAW case law - Brown vs Columbus Stamping and Mfg @ 126. Plaintiff Exhibit B is inadmissible hearsay Evid.R.801, and has a number of irregularities and defects that make it unreliable civr803(6). Name of defendant or account number not on bill of sale nor the affidavit of original creditor. Illegible signatures of signers of the bill of sale. Vagueness of the bill of sale and other documents Original creditor will not warrant the documentation (Midlands legal specialist) affidavit added at the last minute. (Midland's legal specialist) an employee or contractor of Midland - not original creditor, conflict of interest / unreliable witness. Disparity between amount of xxxxx and xxxxxx listed on the data sheet (exhibit (Midland's legal specialist) does not specifically reference the bill of sale, nor the data sheet. None of these documents authenticated by a reliable witness IAW evid.r.901 Data file does not have any amount that matches amount on statement. In light of the above irregularities, and the recent 6th Circuit court of appeals Decision in Robo-Signing Vassalle v. Midland Funding - the court of appeals stated in a land mark ruling: On August 11, 2009, the district court issued a self-described “landmark ruling, ”holding that “robo-signing” affidavits in debt-collection actions violates the FDCPA. The court found the affidavit to be false and misleading under the FDCPA due to the false attestation of personal knowledge. As it turns out, Midland employees had been signing between 200 and 400 computer-generated affidavits per day for use in debt collection actions, without personal knowledge of the accounts. The court, however, denied declaratory and injunctive relief under the FDCPA. With the above ruling in mind, does (Midland's legal specialist) actually have personal knowledge of the account in question.
  7. My motion to strike Exhibit B (the bill of sale and the affidavit) (this has a lot of stuff I got from this forum ) Comes now Defendant Turdfurguson, Pro Se, and respectfully states the following: 1. Plaintiff has submitted into evidence a BILL OF SALE and an AFFIDAVIT OF SALE OF ACCOUNT IN SUPPORT OF PLAINTIFF’S CLAIM (Plaintiff's Exhibit . 2. The Affidavit of Sale of Original Creditor submitted by Plaintiff during discovery does not reference the Defendant’s name or the alleged account number. 3. Neither the Bill of Sale, nor the Affidavit of Sale of Original Creditor reference the Defendant’s alleged account number with the Original Creditor. 4. The inclusion of the Affidavit of (Midland's Legal Specialist) is objected to on the grounds that this document was not presented to the defendant during discovery when such pertinent documents were requested. The document has a date of xxxx,xx 2013 and the plaintiff is just now making this document available. If such a document had been made available to the defendant, then the defendant would most likely have requested (the legal specialist) be made available for deposition. 5. The Bill of Sale does not specify that defendant’s alleged account was included in any transfer, and cannot support the Plaintiff's contention that the alleged account was so transferred. 6. Bill of Sale does not include the printed name of the party signing on behalf of the Original Creditor. It merely shows illegible signatures which could belong to anyone. 7. Defendant further states that the Bill of Sale and the Affidavit of Sale are vague, and do not prove that the said account was ever assigned from the Original Creditor to the Plaintiff. 8. The alleged Bill of sale contains a statement by the alleged original creditor that states: "The Bill of Sale is executed without recourse and without representations or warranties, including, without limitation, warranties as to collectability, enforceability or DOCUMENTATION". Therefore, if the original creditor is unwilling to warranty any of the documentation contained in any alleged sale, how can the plaintiff make any claims as to the validity or voracity of the documentation they are submitting as evidence. 9. The amount being prayed for, $xxx.xx, does not match any sum that is included in the so called Data Sheet. As best that can be surmised under the data heading of "RSMCHGAMT", a balance of $xxx.xx is listed 10. Because the plaintiff is not the original creditor and has no access to the original creditor's records, any evidence they are submitting is hearsay and is inadmissible under Ohio Court rule 802, with exception contained in Ohio Court Rule 803 (6) pertaining to business records: (802) "Hearsay is not admissible except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio." 11. The Plaintiff cannot claim an exception to the Hearsay rule under Ohio Court Rule 803 (6) because the alleged records are not trustworthy due to the deficiencies indicated above: Evid.R.803 (6) "Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901((10), unless the SOURCE OF INFORMATION or the method or circumstances of preparation INDICATE LACK OF TRUSTWORTHINESS. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." 12. Therefore the plaintiff must provide a witness or custodian of these records IAW the authentication requirements of Evid.R.901 from the original creditor who can explain them and can so be cross examined as to their authenticity and accuracy. Therefore the Affidavit of (Midland's legal specialist) on behalf of the plaintiff is inadmissible as untrustworthy hearsay. Furthermore because (the legal specialist) is an agent or employee or contractor of the plaintiff, a conflict of interest exists as to the testimony of her affidavit. 13. The Plaintiff must “allege and prove the assignment.” Zwick v. Zwick(1956), 103 Ohio App. 83, 84, 134 N.E.2d 733. An assignee cannot prevail on the claims assigned by another holder without proving the existence of a valid assignment agreement. Natl. Check Bur., Inc. v. Cody,Cuyahoga App. No. 84208, 2005-Ohio-283, citing Zwick & Zwick v.Suburban Constr. Co. (1956), 103 Ohio App. 83, 84, 134 N.E.2d 733. The Bill of Sale that the Plaintiff is submitting does not measure up to be a valid assignment agreement of any alleged credit account of the defendant's due to defects noted in previous paragraphs and therefore should be stricken from evidence. Respectfully Submitted,
  8. My motion to strike exhibit A (the single credit card statement) Comes now Defendant Turdfurguson, Pro Se, and respectfully states the following: 1. Plaintiff has submitted into evidence a single credit card statement and an illegible credit card agreement. (Plaintiff's Exhibit A). 2. The illegible alleged credit card agreement should be stricken from evidence by the simple fact that it cannot be read. 3. The alleged credit card statement has an unsupported beginning balance of $xxx.xx. The plaintiff has failed to provide any account history which would include credits and debits that would support this starting balance of xxx.xx. Therefore a reliable determination as to the beginning balance of xxx.xx cannot be ascertained from a single isolated credit card statement. 4. To establish a prima facie case for money owed on an account, a plaintiff must demonstrate the existence of an account, including that the account is in the name of the party charged, and it must also establish (1) a beginning balance of zero, OR A SUM THAT CAN QUALIFY AS AN ACCOUNT STATED, OR SOME OTHER PROVABLE SUM; (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items that permits the calculation of the amount claimed to be due. Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 38 O.O.2d 143, 223 N.E.2d 373; Asset Acceptance Corp. v. Proctor, 156 Ohio App.3d 60, 2004-Ohio-623, 804 N.E.2d 975, ¶ 12, citing Brown, supra; see, also, Citibank v. Lesnick, 11th Dist. No. 2005-L-013, 2006-Ohio-1448, 2006 WL 763078, ¶ 9; Mercy Franciscan Hosp. v. Willis, 1st Dist. No. 030914, 2004-Ohio-5058, 2004 WL 2244809. 5. Because the plaintiff has failed to provide supporting documentation for the beginning balance contained in the alleged credit card statement, Exhibit A should be stricken from evidence as untrustworthy hearsay evidence in accordance with Ohio Court Rules 803 (6). 803 (6) "Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or as provided by Rule 901((10), unless the SOURCE OF INFORMATION or the method or circumstances of preparation INDICATE LACK OF TRUSTWORTHINESS. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit." Respectfully Submitted,
  9. My objection to their request to leave to file motion for summary judgement: Now comes Pro Se Defendant Turdfurguson and hereby objects to Plaintiffs motion for leave to file a motion for summary judgment instanter for the following reasons: 1. The court set a cutoff date for the filing of dispositive motions to be no later than November xx, xxxx. It would be unfair to the defendant to allow such a motion at this late date. 2. The Plaintiff filed their motion on Jan 16th 2014, 11 days prior to trial, this is not within the time frame of 14 days allowed under Civ.R.56©. 2. In light of the Plaintiff's burden of proof, the plaintiff has not provided anything other than inadmissible hearsay evidence to support their pleadings. There are questions of material fact concerning the evidence that the plaintiff is using to support their case. See briefs in support of striking Plaintiff's Exhibit A (Target Visa Credit Card Account Summary), and Exhibit B (Bill of Sale, Affidavit of Sale, Data Sheet). 3. The Plaintiff, as a party seeking summary judgment on its own claim, bears the burden of affirmatively demonstrating as a matter of law that there are no genuine issues of material fact with respect to every essential element of its claim. See Civ.R. 56(A) The defendant's reciprocal burden to establish the existence of genuine issues of material fact does not arise if the Plaintiff cannot meet its initial burden. See Capital Fin. Credit, 191 Ohio App.3d 56, 2012-Ohio-4423, 944 N.E.2d 1184, at ¶ 5. 4. Since a genuine issues of material fact remain as to whether the beginning balance claimed in the alleged credit statement is accurate, and whether the Plaintiff was properly assigned this alleged account by the original creditor, essential elements of the plaintiff's claim, The plaintiff's motion for leave to file Motion For Summary Judgment Instanter should be denied. Respectfully Submitted,
  10. I've been a LONG time lurker here. I'm currently being sued by Midland Funding for a credit card account I have no recollection of ever having. I've been sued before by another Junk Debt buyer and used this site to successfully defend myself. The last one was with Portfolio Associates about 2 years ago. Midland Funding seems a lot more tenacious despite the fact that the amount is almost a third of what Portfolio was suing for. Here is the rundown: 1. Who is the named plaintiff in the suit? Midland Funding LLC doing business in Ohio as Midland Funding DE LLC. 2. What is the name of the law firm handling the suit? Seems like Midland's Ohio based in house attorneys - not really clear. 3. How much are you being sued for? ~800 dollars 4. Who is the original creditor? Target National Bank 5-7. Service was proper 8. What was your correspondence (if any) with the people suing you before you think you were being sued? I don't remember seeing anything. 9. What state and county do you live in? Ohio Lucas 10. When is the last time you paid on this account? I don't recall having this account. Their nebulous "data sheet" shows around Aug 2008. 11. What is the SOL on the debt? 15 years if Ohio, Haven't seen a credit agreement to know which state applies 12. What is the status of your case? Summons issued, answered, discovery completed, 3 pre-trial conferences, Midland requested a leave to seek summary judgement a week before the 1st trial date of Jan 27'th, their request was denied. New trial date of Feb 21st. 13. Have you disputed the debt with the credit bureaus? No 14. Did you request debt validation before the suit was filed? No, my first communication was the lawsuit, I then sent them a validation letter. 15. How long do you have to respond to the suit? I have 3 more days to respond to their request to leave to seek summary judgment, a letter from the court came today stating that their request was denied. So basically I have until the 21'st to prepare for trial. 16. What evidence did they send with the summons? A single credit card statement. To cut to the chase. My question is: Should I do nothing at this point as far as responding to their request to leave for summary judgment, which also included a copy of their request for summary judgment, and just wait for the trial to submit my objections, motions to strike, and affidavit in support of my not ever having this credit card. Or should I respond to their motions as if I never received the notice from the court that they were denied - and lay out my entire case for the judge prior to the trial. The deadline for my response to their motions (which were denied) would be this Monday the 3rd of Feb. If you want to read further - here's the case in more detail: Back around March of 2013 I received their complaint. It was the first time I had ever heard of Midland funding. Since I have gone through this before, I kind of knew what to do. So I responded to the complaint with pretty much across the board denials and the positive defense of "Lack of Standing". I then received a letter from the account department of Midland Funding stating that "We have been informed by our legal department that you are the subject of a lawsuit".... "We can help work with you - call us".. I sent them a letter demanding a validation. We had a pretrial conference in June. None of the lawyers listed in the complaint showed up, they hired a local attorney to show up (who is a pretty nice guy to work with). I told him that I did not recall having this account and as far as I was concerned they had not proven anything with their single isolated credit card statement. He agreed and we went before the judge to tell them that at that time we couldn't work it out. Judge set a date for completion of discovery, explained my rights and trial process, and then set a date for another pretrial conference. They sent me their discovery toward the end of the allowed time period, I sent my discovery pretty much right away. I Did not receive a response from them concerning my discovery in the allowed time. Went to the 2nd pretrial conference in August. Pretty much identical to the first one, except the judge granted the plaintiff one more week to respond to my discovery, and granted me to the middle of October to respond to their discovery answers. The judge then set an end date for all discovery, and an end date for any motions for summary judgment (the middle of November), and then set ANOTHER pretrial conference. (To put this into perspective.. the lawsuit is for less than 800 dollars, each pretrial conference they hire the same local attorney to attend - going on 3 times now). I received, over the next 2 weeks, in about 3 different packets their responses to my discovery - to all my requests for admissions - they denied or objected, to all my interrogatories they objected on grounds of too vague, too burdensome, or "trade secrets". To my request for documentation, they objected to on grounds of too vague. (if you need me to rehash all that in detail, let me know). What I was trying to do with my discovery was get them to admit to FDCPA violations. More so to scare them off, but to also give me ammunition for my own suit if I lost this suit. They didn't really take the bait and denied everything. But they also offered no documentation that I was requesting that would prove that they tried to contact me prior to the suit. One of the things that really bothered me - regardless of the merits of this particular case - is how these junk debt buyers are using the court system as an extension of their business model... so I feel like kind of a crusader. I even expressed that sentiment to the hired attorney during one of our pretrial conferences. OK, back to the case. So after discovery was completed nothing really happened. We had a pretrial conference in December, but I could not attend because I was held over at work that day (I work nights as an RN) So I missed the next event. My foil - the hired local attorney did attend. And the notice I received from the court stated that the trial would go ahead on Jan 27th regardless of whether any party attends or not. So about a week before trial on Jan 16th I received from the Midland attorney's their request to leave to request summary judgment - and attached their actual request for summary judgment - basically they rehashed their complaint and stated that it was now up to me to prove my case more or less. Since this was just a week before the trial I typed up my objection to the leave - which stated that the court set a firm date for dispositive motions and also Ohio court rules (Civ.R.56) requires this type of motion to be at least 14 days prior to a hearing / trial. I also typed up my motions to strike their evidence. They have basically 2 groups of "evidence"... which gets kind of complicated - so let me explain. Exhibit A is just a copy of a single credit card statement from target to me at my old address back in 2008 and an unreadable copy of a credit agreement (the type is so small you can't read it with a microscope) But you can make out that there is no signature or identifying information on this illegible copy of an agreement. Exhibit B consists of 1.) a copy of an "Asset Sale Agreement Attachment 2 - Bill of Sale" that doesn't contain anything about me... just that Target "sold / assigned all personal property compromising the Accounts listed in the final electronic data file named REDACTED dated such and such as provided in the Forward Flow Asset Sale Agreement dated such and such". Then they have a paragraph that warrants this as "Sellers Business records... then something is redacted. then there's a statement that says the agreement is executed without recourse or representations or warranties etc... Basically saying that Target will not warrant the data they sold. Exhibit B continues: 2.) A data sheet - that looks like an excel spreadsheet that has my name, the account number redacted, my old address, then a bunch of gobbly gook that has no explanation. Interestingly enough - one of the data fields I think is the Charge off amount (RMSDTCHGDT) This amount is different from the amount on the statement they provided and the amount they are suing for. 3.) The Affidavit of a legal specialist that has access to pertinent account records for Midland Credit Management - she says she has personal knowledge and is familiar and trained by MCM to know their business records and can attest that Midland's records show "The Defendant(s)" owe x amount of dollars to midland. Then this affidavit is notarized by someone in the same county in Minnesota. The interesting part of this affidavit is that it was submitted as evidence with their request for summary judgment (so it wasn't sent to me during discovery - a completely different affidavit FROM TARGET was sent during discovery. The one from Target has no identifying information that can tie it to me... just like the bill of sale. but this affidavit from Midland specifically identifies my account and the amount, but not me by name - the target account number is redacted except for the last 4 digits. So to go on.. (yawn.... LOL... ) After receiving this packet with their request to leave, and their request for summary judgment around Jan 16 - I was kind of blindsided because I was just expecting to go to trial and make oral arguments / attack their "evidence". So I panicked... and of course came to this forum to see what I could do about it. Interestingly enough all the action that I decided to take came from reading my Ohio court rules, and not anything specific I could find in the forums - other than a great example of someone attacking the Bill of sale and the affidavit. But here are my objections and my motions to strike - which I have yet to submit... see my original question at the top of this lengthy diatribe. I'll make another post to paste what I have typed up... stay tuned:
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