fightingmidlandinok

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fightingmidlandinok last won the day on July 2 2015

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About fightingmidlandinok

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  1. Thanks for the good bit of advice about following up and making sure. Fortunately, it has been updated in the electronic records already and in great big red letters "dismissed" and the plaintiffs dismissal request is right there to read. Still I will be calling the judges clerk a few days before just to be completely sure.
  2. It was like some kind of weird drama Kittycat. But it was a serious one too. I have felt like I have had this big weight hanging over my head all this time, and now *poof*, it's just gone. And no, judges in OK are definitely against debtors. I watched one case in front of me, which was the only one of about 30 that actually showed up during my times in court. When they called the ladies name her husband went up with her. The judge looked at him and said "are you an attorney?" He said no. "Are you named as a defendant?" No. "Well go have a seat then." The man said his wife needed help as she didn't really understand what was going on. "I said have a seat. You aren't involved in this litigation." Then the judge asked where her answer was. The woman all confused said she didn't understand and BAM. "Motion for Summary judgement is granted." I understand it's partly people's own fault for not doing the correct things, but when these things are so hard for the layperson to figure out you can see why this is such a huge business. I watched repeated no show after no show and the judge would grant Summary Judgement and just sign whatever the attorney gave him without even a cursory glance. I swear it seems to me anyone could sue anyone for any amount and if they just ignore it or don't show up win automatically. It should not be this way. There should be a minimal level of evidence needed to grant these summary judgements, and I would think showing that the debt is actually owned, you know with a document that shows the transfer, would be a bare minimum and they rarely, IF EVER, have that. Now I am going to try and help others in my area in this same situation fight back. Lawyers here all seem to want $2,000 up front to work on your case and most people in this position can't afford that. Time to give back a little and help others out. From the looks of it, if people will just fight back the JDBs and their attorneys here will look for easier targets and it would give me a great deal of pleasure to screw up some of their cases.
  3. A quick recap: I was sued by Midland Funding over an old credit card debt for about $7,500. I answered the suit, we did discovery and they promptly filed for Summary Judgement. The first SJ was continued so Midland could get the proper document from CHASE spelling out my account. The second Hearing for SJ, I won by pointing out they did not have that. You can read about it here: http://www.creditinfocenter.com/community/topic/325986-a-victory-in-motion-for-summary-judgement-of-sorts/ So it's been six weeks or so since their motion for Summary judgement was dismissed and the case set for trial. And I really have done nothing to prepare. I was at a loss for exactly how to prepare for trial and really my hope was they would offer me a settlement in the $2,000 range. Their attorney had left me with a "we will send you our best offer right away" after the hearing but I had heard nothing until today. Today I get a letter in the mail from the attorneys (Love, Beal and Nixon) I figure it's a settlement offer of $5,000 or so and I think "let the negotiating begin". But no, it's a voluntary DISMISSAL from Midland. WOOHOOO... so frickin happy! And so glad all my hard work, late nights, effort and even representing myself pro-se in court paid off! Obviously they decided that fighting me to get a judgement they had little chance to collect much on just wasn't worth the time, energy and expense. I've already filed a complaint with AG of Oklahoma about their practices. I got kind of a cryptic response "we are aware of the activities of Midland Funding, LLC but we do not disclose investigation details" so maybe they are already being looked into. I have seen so many Summary Judgements due to a lack of activity on those being sued, I hope something happens to limit them. For those of you in a similar situation my advice is FIGHT! Fight hard! Do your research, file your papers, and just fight them tooth and nail at every turn. Don't let them scare you or intimidate you, when push comes to shove they usually don't have the necessary papers to win. Also just the act of fighting may cause them to give up and look for much easier targets. Forgive my back patting, but I am in a state of near euphoria today. This has been a long hard road and I haven't been this happy about something in a long time.
  4. Thanks for the replies all. And saytar, this has become my little crusade now. I plan on trying to see if I can get the Attorney General to look into this. These judges should not be rubber stamping these cases even if people don't show up or answer. I watched the judge just sign whatever Love, Beal and Nixon put in front of him without reading it over and over and over. They should still have to show they actually have a right for a judgement on these kinds of debt. The AG for MN went after Midland over their affidavit practices, I would like to see ours do the same thing.
  5. Thank you Harry Seward. I appreciate it. And to answer the previous question. Yes we have been through discovery. It was pointless as I had nothing to give them and they objected as too burdensome to every single thing I asked for, or said it requires a conclusion of law they cannot make. Which frankly I was ok with. Why would I want them to prove their case?
  6. Well I won. (Sort of) It's set for trial in september. You can read about the Summary Judgement hearing here: http://www.creditinfocenter.com/community/topic/325986-a-victory-in-motion-for-summary-judgement-of-sorts/
  7. I had my Summary Judgement Motion hearing today. It's on a Junk debt buyer credit card case. The plaintiff is Midland funding. I wrote in detail about it in other posts, so I won't go into it here. The first SJ hearing was continued from 3-26-15 when the judge told their attorney they had to have something from the original creditor showing my account name and number. So here's what happened at Summary Judgement today: The Judge called us up and wanted to know again why it was continued from March. As their attorney for Midland said "I'll find it here in just a second". I said "it's because you told her she needed to have a document directly from Chase showing the assignment of my name and account number to Midland". So he held up the little paper with the data file from Midland and said "Mr. so-n-so are the last 4 numbers of your Social Security number ####?" I told him "yes". Then he went on to say that this data file shows that Midland has my account. Fortunately, this fell right into what I had spent most of time and energy on and I proceeded to explain that record was from the plaintiff's own records, not Chase's, that the affidavit that record attached to was from Midland and tried to "self-authenticate" their own records, that records referred to in the affidavit had not been produced as required by Summary Judgement Rule 2056 (e) and that SD-114296 clearly shows that these affidavits cannot be the basis for Summary Judgement. As I was relaying this information the judge just kind of stopped looking at his papers and slowly lifted up his eyes and looked at me. Then he said "Mr. so-n-so have you ever heard the saying, be careful what you wish for? Well you may get more than you bargained for. I'm going to deny the motion for summary judgment and we can just set this for trial. Then when the plaintiff comes up with what I think will be easy for them to get, then Mr. so-n-so, you will have a lot of very expensive lawyer fees to pay on top of this settlement." So, he sent us over to his clerk and we got a trial date in September. As I was leaving the area by his bench he called my name "Mr. so-n-so, do you know what a pre-trial conference is?" I replied "Vaguely your honor. But I certainly will by the time it arrives." And that was that. Their attorney, then told me all smiling "I am sure we can work something out. I will send you our BEST offer." I told her that I was willing to listen but that $5,000, $7,500 (their approximate suit amount) or $12,000 were all the same to me I can't pay it. So I guess in some ways it's a victory but on the other hand I am also digging myself a deeper hole. I am going to take a few days to breathe as the trial is set for September and then start work on the pre-trial conference. The thing that chaps me the most is that to me the judge basically admitted that every time he has granted these summary judgements on almost identical evidence he is wrong. Because when push came to shove and I gave him absolutely no other choice he sent it to trial. If he really thought SJ was appropriate he would have just said "Summary Judgement is granted. Appeal it if you want, Mr So-n-So". I have to say I am exhausted and fearful of the future but also a little invigorated. I worked really hard on this and spent many long nights reading about it and at least at this point I was a tiny bit vindicated. I have pored over hundreds of these cases, and the very few (about 5 of 300ish) that made it this far, Summary Judgement was always given to the plaintiff. I found 3 appeals, two were affirmed, and one was reversed. (Unifund vs. Ekpo, SD-11496, my new best friend.) I hope my continuing saga helps someone or at least lets them know that standing up for yourself and fighting these vultures tooth and nail can be done pro-se.
  8. I am going in for my second Summary Judgement hearing tomorrow. The first one was continued when the judge said to Midland's attorney "get me a statement from Chase specifying the Defendants name and account and I'll give you summary judgement. How long do you need to get that?" I have been watching the mail and the online court records daily, and they had not sent anything. During that time, I have filed a motion to strike the plaintiff's affidavit of indebtedness, filed an affidavit of my own with the court laying out the facts, and amended my original opposition with some spiffy case law I found. So today, the 13th! I get in the mail (and it was mailed the 12th probably figuring I would not get it) an opposition to my motion to strike their affidavit, and another! affidavit of indebtedness from another one of their "robo-signers" in Minnesota. So they have not come up with the document the judge told them he needed. (Wouldn't it be nice if every judge would just tell all of us pro-se litigiants exactly what we need as he did for this plaintiff's attorney?) Hopefully the judge will remember that or it will be in the record, so he will abide by it, but as I have seen after watching these cases there is so much discretion left to the judge, I just have to hope he's in a good mood tomorrow! So I have gone from being completely deflated after the first MSJ, to having some hope now. I also have since found a case in Oklahoma (Unifund vs. Ekpo) that is almost identical and was reversed on appeal. In that decision, the appeals court emphatically stated "the mere statement that an assignment occurred is not sufficient to warranty summary judgement. The credibility of such testimony is in question and must be decided by a jury" To me this sounds like a slam dunk that Summary Judgement is not appropriate but after the way the judge treated me last time as pro-se, I am not sure it will matter. I do plan on being more vocal, as I pretty much let the judge ask his couple of questions and then render his continuance. I told myself if I am going down, go down swinging not just standing there. I did have an attorney I did a free consultation with tell me he didn't really believe I did all of this pro-se and that if I did he said it was the best pro-se he had ever seen, so that at least made me feel good about doing as much as I possibly could to fight the good fight. However, I am up against a mega-monolith company and the fiercest attornies in this area of law in Oklahoma (Love, Beal and Nixon) and they have not just gone away when I started fighting, but have ramped up the documentation to levels I can't hope to match. Still, without this one thing of an assignment specifying my account from Chase, there is a sliver of hope. I'll post the results tomorrow. (Or the next day if I lose and I need a night to drown my sorrows!)
  9. Not sure if I have to file a motion to amend my Opposition to Summary judgement in a JDB case or if I just file it as an amended opposition as I would file any other evidence? Basically, I am wanting to add a few more case law references to my initial Opposition.
  10. "Bill of sale is executed without recourse except as stated in the Credit Card Account Purchase agreement." But it goes on to state: "Seller represents and warrants:" Account information is complete and accurate. Constitutes seller's own records. Account information kept in normal course of business, etc. (truncated for ease of reading, but you get the idea) The bolierplate bill of sale never references my account directly, which is why the judge told the attorney he would need something that specifies my account and he would give her summary judgement. "Did they provide a complete accounting of the account from a zero balance to what they are suing you for? How do they know the amount is correct?" No, they provided about 2 years worth of bills that were the period up until last payment. I attacked this in my Opposition to SJ. Asking how they could verify the amounts when they started at $5,XXX and don't have one signed receipt or evidence such as electronic signature of my swiping the card. I thought sure that although my last line of defense it was rock solid to preclude SJ, as there was no way to validate the amounts..... (wrong again!) Oklahoma has a rule of civil procedure that requires any affidavit that references a paper (yes it says paper) to have a certified copy of that paper attached. The plaintiff's affidavit references business records, but they were not attached (nor disclosed in discovery even though asked for), so I plan to attack that as well. I am somewhat unsure if this applies to "business records" or only if it applies only to an exact named paper, but I plan to attack it regardless. My real question is that "The mere assertion in a pleading, when attacked by a motion for summary judgment supported by proof of specific facts in the form of an affidavit or deposition, places on the author of the statement the obligation to present something which will show that when the date of trial arrives, he will have some proof to support the allegations in the pleadings." (quoted from an actual case) is I seem to be lacking any of my own proof, that just attacking their proof isn't enough. That I must show I will have something at trial in order to defeat the Motion for Summary Judgement. And I can't for the life of me figure out how to provide evidence, when my case is that there is no (or insufficient) evidence. How do you show evidence for something you are saying does not exist?
  11. I am a little confused with one thing. I see that it is not enough to rely on denials and plaintiff's lack of evidence when opposing Summary Judgement. That "litigant opposing the motion must show something", some piece of evidence that actually disputes a material fact, to preclude Summary Judgment. What would that be? How would you have evidence, that something doesn't exist? My case is basically that they aren't proving theirs. How do you support that other than attacking their evidence? Should my evidence be an affidavit? My Opposition to their Motion for Summary Judgement attacks their evidence but doesn't offer my own. A little guidance on this would help a lot. Thanks!
  12. I was sued by Midland in Oklahoma which you can read about in my only other post if you are so inclined. I went all the way to Summary Judgement and I am now just awaiting the next SJ since it was continued until the middle of May. Basically, all Midland has to do is come up with a Bill of Sale specifying my account and I lose. Frankly I felt pretty defeated but I am recently reenergized to carry on the fight. It may be too late and the delay I have allowed since the SJ hearing at the end of March may have even damaged me further. However, after consulting with an attorney (a great guy who gave me an hour of his time and helped me a lot) even though I can't afford to retain him, I did get some ideas. I also found this case: And anyone in Oklahoma fighting these people, I highly recommend you review this case: Unifund CCR, LLC vs Ekpo This was in the Oklahoma Court of Civil Appeals. In this case the JDB, Unifund had obtained Summary Judgement against Ekpo and Ekpo had appealed. This case was handled by Love Beal and Nixon as attorney for Unifund the same attornies representing Midland in my lawsuit. Since they file hundreds of cases they use basically the same format and documentation in their cases. In the Unifund case the SJ was overturned, and the Appeals judge stated: "herefore, the trial court clearly erred in granting summary judgment. The judgment is reversed and the cause remanded for further proceedings." A link for anyone that wants to read it, or for any of my fellow Oklahomans fighting these vultures: http://www.oscn.net/applications/oscn/deliverdocument.asp?id=474721&hits=2642+ The part that most interested me was a section about the affidavit of debt used by Unifund (just like the one Midland is using) In that it points to the Oklahoma Statutes Pleading code Motion for Summary judgement: AFFIDAVITS AND FURTHER TESTIMONY. A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits In the affidavit they refer to "business records" kept in the ordinary course of business. But they don't attach any of these to their affidavit which seems to be a clear violation of the Oklahoma rules. I would like to go after that, and use that case to show the judge that he should not give SJ. I asked for all of this in discovery but was put off. I know I could file a motion to compelt, but why would I want to compel them to prove their case? It would seem lack of these documents would work in my favor. One last thing: the affidavit was given by an employee of Midland's subsidary from Minnesota. Midland paid $500,000 in fines (without admitting guilt) after suit was brought against them for their affidavit practices. Coincidentally, (or not of course... it's Midland) the affidavit came from an employee in Minnesota. Perhaps I can weave this in to the unreliability of the affidavit? I can file a motion to strike the affidavit, if it's not too late?
  13. I've been lurking for quite awhile. Ever since I got sued by Midland and started my pro se defense. Unfortunately, I came within a whisker of losing Summary Judgement on 3-26-15 and though it was continued until the middle of May all the plaintiff has to do is produce an assignement letter from Chase Bank and they will win. If anyone has any advice please, don't hesitate to give it! The backstory: Got served by the suit from Midland. It's for $7,400. It's on a charged off Chase card account from 2010 that Midland bought. I researched and submitted my answer to their petition of indebtedness also requesting debt verification. They sent me that, or such that is was. The bolierplate Bill of Sale without my account on it, and 2 years worth of credit card bills. Then they sent discovery, and so I sent my discovery. We both answered. Of course theirs was all "too burdensome, or client-plaintiff confidentiality or my favorite, "requires a conclusion of law". Then came the Motion for Sumamry Judgement. Which I submitted my opposition to. Now, with all of these filings I did things right filing with the court with a certificate of service and mailed them certified to the attornies plaintiff, Love Beal and Nixon, who literally files hundreds of these. I thought sure there's no way they are getting Summary Judgement with such flimsy evidence and my well thought out defenses. So the Summary Judgement day arrives and after the judge rubber stamps 4 other cases from the same Midland hired gun, with defaults and just signs whatever the attorney puts in front of him without even looking at the papers he calls my name. Their lawyer is surprised and puts away her default judgement paper and digs out my file and we approach the judge. He looks over the papers, and I'm thinking I will get a chance to speak when he's ready to hear both sides, but he looks at me at says "why do you think the statute of limitations of three years applies instead of five". I lay out my argument of that since there is no signed contract of any sort that it must be implied. Further I go on to state that in the plaintiffs own Summary Judgement Motion they use the exact words "express and implied" which is the word for word verbiage used in Oklahoma Statute 12-95 (2) that sets the Statute of Limitation on contracts express or implied at three years. The judge lets me say my piece, then simply says "I'm applying the statute of limitations of 5 years. No explanation, nothing. Well, I still have the issue of standing and the absolutely pulled out of thin air amount they are suing for, so I figure they are still not getting SJ. As I am about to start the judge looks at the attorney and says "I am inclined to give you summary judgement but I will need something from Chase that specifies this exact account". I was speechless. I said, but judge you haven't even let me talk to the fact the amount they are suing for or that the affidavit they use is hearsay and... the judge says, "if they get me the paper from Chase I am giving them summary judgement". I just wanted to yell about the rules governing SJ which I know verbatim: "all evidence is to be looked at in the light most favorable to the party opposing the Summary judgement". There's no way anyone with half a brain could look at this stuff and come to the SJ conclusion for them. It was obvious the judge absolutely hated the fact I was appearing pro se, even making a comment about people who pull stuff from the internet written by some paralegal without a high school education. There are a couple of things I have not done, that I could do, but honestly I doubt they will make any difference. I have not done a sworn denial and I could do that. I honestly have no recollection of the Chase account although it's very likely I had it, I just don't remember it, so I could legitimately make a sworn denial. I could also file a motion to compel their discovery, I could file a motion to strike their robo-signed affidavit as hearsay and I could also hire an attorney to fight it for me. I am afraid it's all for naught at this point but I am open to suggestions. It's funny how judges can come to such vastly different conclusions. I watched the youtube video of the guy fighting a SJ in Arizona and his arguments and affirmative defenses were almost word for word mine, and yet he clearly was never in any danger of losing his SJ and I am hanging by a thread.