Hi BTO429 - i've read your posts and find them confident and informative, helped get me through the first parts of a suit by Marvin Dang (Honolulu lawyer) on behalf of Midland with a lot more confidence than I could have mustered on my own - thank you for that. I'm wondering if I could gain insight from you on my current situation?
At the 2nd court appearance where I was about to deny the debt charges (for the 2nd time), the lawyer representing Dang asked me to step outside I assumed to make an offer. Instead, he said he recognized me through a mutual (good) friend and took a sort of i'm-going-to-help-you sort of posture. I didn't say much as I didn't recognize him. But am close enough to our mutual friend where I was inclined to be open-minded.
He pulled out printed statements from the charge account in question, the front page of which reflected charges that had nothing to do with my life. I didn't look in-depth beyond that until later. In the moment, with my case a few people next on the docket, he asked me if I felt the reflected charges were fraudulent, and if it could be possible that this is a case of ID theft. He then implied that the kind of research he guessed I had done, about continuing to deny the charges and asking for comprehensive verification of proof of debt hand-off, original charge card info and all other strategic steps to pursue the invalidity of the suit, was a waste of time and these kinds of steps never pan out particularly in the Hawaii court system, has been tried and failed many times over.
It was confusing to say the least and my confidence was chipped. I was under the stress of uncertainty as well as feeling the pressure of being called on by the judge, and not being in the courtroom. The lawyer told me he strongly advised taking the ID theft approach, that it would absolutely work in my favor. Perhaps I was a fool to do it, but I agreed. We went into the courtroom, stood before the judge, he asked how I pleaded, the lawyer next to me spoke up and said this appeared to be a case of ID theft, and that he and I would enter the next stages of verifying this, and would present findings at the next appearance.
That was on 3/28/16. I had not heard from him until today - 6/7/16 - with a number of documents to fill out, notarize, and send back by 6/10/16. The next court date is 7/18/16. Amongst these documents are:
1 - "Fraud Questionnaire 073109 Collection Form":
asks if it was 'possible' that I opened a Chase Bank account and that I do NOT recognize Midland Funding the creditor on the account as a result Y/N
If anyone else was authorized to make changes on the account, and if so if it was possible for them to make some or all charges involved Y/N
Statements were mailed to (my actual billing address) and have I ever received mail at that address Y/N
Did I ever make payments on the Chase/Midland card account # (an actual charge card number provided in full) Y/N
Did I ever notify Chase/Midland of fraudulent activity Y/N
Do I contend alleged fraud charges made after I requested the account be closed Y/N
Do I contend alleged fraud charges made after I removed an authorized user Y/N
If I am alleging ID theft, was I victim of ID theft on other accounts as well Y/N (yes)
If I am alleging ID theft, do I know the ID of the person who stole ID info Y/N (no)
If I am alleging unauthorized use of the account, do I know the ID of the person who used the account w/out authorization Y/N
If I allege unauthorized use, id only part of the balance owing made up of unauthorized charges Y/N
If I allege unauthorized use, even if I did not authorize charges, did I receive benefit from them Y/N
Then, triple signature.
2 - *"Affidavit of Fraud Application 110206 Collection Form":
This asks for full disclosure of my current and any past addresses.
If I ever applied for a Chase/Midland card account,
That I did not receive a card from them with the (full) charge card #,
I did not authorize, direct or empower anyone to apply or seek credit with them in my name, or use any account in my name to make charges,
I have reason to believe the following individuals applied for and/or used the card described (2 - name/address/phone sections)
Then, triple signature, and notarization required + commission exp date.
*This is the form that caused me to pause as it asks for a lot of info that i'm suspicious about, feel I shouldn't reveal confirmation of my actual contact info in full to these people.
3 -" Identity Theft Victim's Complaint and Affidavit"
This is a 6-page form that states is "voluntary for filing a report with law enforcement, and disputes with credit reporting agencies and creditors about ID theft-related problems. If asks for very detailed contact and verification info about me, what this same info was at the time of the theft/fraud, declarations, about, documentation, about the above information or accounts, law enforcement report, signatures, and then using this form in lieu of a law enforcement report if one isn't filed to prove each of the companies where the thief misused my info that I am not responsible for the fraud.
I realize this is a lot of info to review in a short window of time, if it's even possible for you to review before Friday (deadline to mail these forms to Dang's office), but if you could give me your thoughts on this, it would be tremendously appreciated! As much as I want to trust this process, and can devise what I think might be appropriate direction to take in filling these forms out, there's a side of me that remains highly suspicious and think I might be getting trapped into something i'm going to regret.
Do you agree? Very curious to gain an educated, objective point-of-view - thank you.
I've been going over this case and so far I have filed my answers along with a request for Discoveries, Interrogatories and Admissions from them, which they have replied. They didn't ask me for any such requests yet and it has been almost a month. I would have thought that they would sent that when they sent me their responses. Anyway my discussion would be about the fact that S&H are not licensed and have to be to conduct business in my state. I filed a formal complaint with the State Department of Finance and am currently waiting for there conclusions. I want to file a motion to dismiss w/ prejudice as soon as I get that letter and/or when I hear from the court on a hearing date. I also filed my response to the complain demanding a jury trial just to mess with them. What do you think all the violations could be considered beyond the filing without a license? Like filing false or deceptive documents, out of venue, lack of standing, false representation, anything you can offer up advice would be greatly appreciated. Thank you
I have stated just what the judge said on numerous occasions. I have always had arguments about that fact. But I guess the judge clarified what i have said. I have always said the the contract is the governing doc when a claim for breach is made. Thats what the judge is saying here, if you want breech of contract, produce the contract. It is hard for a judge to rule on a contract when he does not know what the contract states.
Anon be careful with this statement, I know exactly what you are talking about and agree, but I have been admonished on more than one occasion for saying this. I have said more than once,"statements of council in brief or argument are not facts before the court" I guess some people on the board do not know what this means or where it comes from. I have also stated that council cannot testify as to the facts of the case, I got admonished for this one also,,, lack of understanding i guess. I'll prob get hit again, but it is important for people to know this issue. I have seen it cost people their case simply because they did not object on those grounds.....but in so many words was told I do not know what I am talking about.
Iwould prepare a suit over fdcpa for failure to comply, that letter is letter is an attempt to weasel out of the fdcpa requirements. I bet if he does send them a more definite letter they will send him a letter that says that the second letter is not enough information either. I know what kind of letter I would send at this point,,,,,,,,,BUT
Now that you are in a civi action make a motion for court ordered arb,,,,,,what this amounts to is they are trying to avoid having to pay for the arb, the debtor does not pay for arb ,,,,,usually.
Since they did not state a definite cause of action in the complaint a motion to dismiss for failure to state a claim for which relief can be granted will do. If the court agrees, they will refile and do it right. You wont get a dismissal with prejudice. You are going about it wrong here, I would file a motion to dismiss for failure to state a claim for which relief can be granted. They do not state any claim, i,e, breech of contract, account stated, common counts, or any other claim. In order to invoke the courts authority you need to tell the court under what pretenses you are suing. They may have implied there was a contractual agreement or an implied contract in their wording,,,,but they did not specifically state what claim they are suing you under. Plaintiffs motion is a procedural nullity, its does not state a claim for which relief can be granted, failure to inform the court under what pretense they are suing under. You are in the same circuit as me, this case reestablished the pleading procedures for this area. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) inter alia “fair notice” of a claim is insufficient. In addition to providing notice, the complaint must state a claim to relief that is plausible on its face.(i,e, breech of contract, account stated etc etc) This was an anti trust case but it has made the standard of pleading a complaint more specific. Another case they use in our district is Ashcroft v. Iqbal, _ U.S. _ , 129 S. Ct. 1937 (2009), the Supreme Court held that the “plausibility” standard applies to all civil actions. Under Twombly, a defendant should not be forced to undergo costly discovery unless the complaint contains enough detail to indicate that the plaintiff has a substantial case. And the complaint must state the cause of action. Our courts are now being bombarded with failure to state a claim motions. I have mentioned these cases on numerous occasions. Bissessur v. Indiana Univ. Bd. of Trustees. et al., 581 F.3d 599 (7th Cir. 2009). Is another case that our Supreme court rued on and is in use in our circuit, the Supreme court upheld the motion to dismiss. Bissessur (“Our system operates on a notice pleading standard; Twombly and its progeny do not change this fact.“). Smith v. Duffey, et al., 576 F.3d 336 (7th Cir. 2009) The Supreme Court upheld another failur to state a claim motion, and they relied on the Twombly case and Iqbal. Riley v. Vilsack et aI., 665 F. Supp. 2d 994 (W.O. Wis. 2009), Another case where they relied heavily on Twombly and Iqbal. When an element of a claim involves the intent of the defendant, the plaintiff is limited in the facts that he can provide at the pleading stage. The plead facts of the case, they did not state a claim,,,,in Indiana court commonly acknowledge. Statements of council in brief or argument are not facts before the court. In other words just because and attorney makes a statement does not mean it is true, they have to prove the statement before it becomes a fact. You cannot plead the facts of your case, that is what trial is for,,,,,all that needs be done in a complaint is state your claim of action,,,,the details come out in court.
I would at least bring up this DOJ ruling in court, it may or may not hold any weight with the court, but if you do not bring it up you know the answer. You have some defenses on this the account on your credit report says its paid.....bring that up in court. I A validation letter will preserve your rights under the fdcpa, but it takes hardly nothing for them to comply to it. I would send it any how. If you do not want to pay, then wait thirty days after the dv letter and send them a cease and desist order. Ten the have to either go away or file suit.
In Juy 2009 I got one of those rent to own buildings,,,,I had a big post about the repo man over this. I have roof this is paid off. The owner of the company has had no contact with me since Dec 2012, For the last six months I have been receiving bills from his accounting firm that he uses. I have the pay off letter and it matches the amount they claim i owe. I am tired of the bills, and I am sure that if a complete accounting was made of this account it would show I paid to much. I cannot believe that after a law suit in my favor, he would wait 8 months and then start sending me bills again. But the law suit did not include the amount owed it was just over an illegal repo. So maybe a new case is in order. He claims I still owe 386 dollars, his last letter sent to me says the bill would be considered paid in full, if I send him another 186 dollars. I have the bill from 12/12/12 that says the same thing, but in Dec 2012 I paid the 186 and the letter says he would remover any late charges and apply my deposit to the bill and consider it paid in full. I paid the 186. Even though I am sure his accounting is not correct, the 386 dollars he says I owe is for late charges only. He has been adding late charges on this bill for almost the entire life of the contract. This was set up for auto pay every month, they billed my bank one month behind for two years. It is not my fault they did not bill my bank on time.
The above is correct, we misstate this a lot,,,,,no one is judgement proof, they may be collection proof but that can also be limited. They can attach property up to the amount of the debt also. If they search hard enough they will find something.