Coltfan1972
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Hello, my name is Jessica,mMy employer recieved a Writ of Garnishment fro mainstream aquistionsin January yet didn't tell me until April 27th . I would be lying if I said I I never recieved the any letters from mainstream . My issue is that I have worked on and off with the same employer for 3 years. I receive my first letter right after I left the company in November 2015. I ignored my first letter due to the fact that I was no longer working with them and I also have never had any account with chase / Washington mutal. I honestly thought it was bogas. Especially since i keep tabs on my assetts and credit report. And it came out of nowhere with a 1300.00 settlement. So over the next two years mainstream continued to send my employer a Writ of Garnishment when I was no longer their. I received copies of the writ in mail but never a judgment. Nothing ever came up at my other job, so I didn't worry. On April 27th my boss came to me and told me that she had received the letter in January that her accountant had just sent the letter to ADP to handle it. So my boss was in complete fear that she was being sued with my issue and started the garnishment already. She gave me the lawyers number and I contacted him he said that this is something that happened in 2012 that I signed a judgment in Miami Florida. In 2012 my husband and I got a divorce and I move to North Carolina I didn't even live at that address in 2012. I was back and forth and had rented an apartment. So needless to say I never saw any paperwork as far as a judgement or a court date or a certified letter of any kind . When I spoke to the lawyer I asked him what had accrued this debt and did he have any documents with my signature on anything. He was a complete smartass stating that he did not need a document with my signature and that this is a judgment that's been going on for a long time he has my employer taking out 25% of my 2-week commission. As of right now he cannot touch it but it is being held. I don't know what to say to my employer I'm just trying to get this taken care of she should have let me know this from the jump and January but that's not what happened so moving forward. The lawyer that I spoke with, who isn't even with mainstream aquistions corp, he is with O&L law group, of course offered me a buy out of the full dept at that very moment. He told me he would fax me these documents and then he would work with me on a smaller percentage rate as soon as I got the signed papers back to him. Once I read the papers that he sent me there is no way that I'm willing to agree to any of this and just sign. I need guidance as to do I just not contact the law firm and file for a hearing? Should I also seek legal aid due to the fact in March I lost my child and I would have felt comfortable filing for an exemption before March but I don't know if I have any ground to stand on now.
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Hi Coltfan - i've read a lot of your posts and they got me through the first part of a 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.
At the 2nd court appearance where I was about to deny the debt charges, 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.
My SS#.
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?
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Probably not a violation and if it was it would take a pretty creative argument, which I course we could pull off around here because we are the best at what we do. However, what I would do is concentrate on just kicking Midland's a$$ in court, something that is done around here about as often as taking out the trash. Plus the good news is it's Midland, there is a ton of time left for them to violate your rights on something that is a lot more slam dunk. In other words an easier violation. You did the right thing by basically telling that attorney to shove it where the sun does not shine. The reason they said nothing in reply was because they know you were right. I would start looking toward the discovery process and making this a lot of trouble for Midland (formally known as being a nightmare). However, make sure you stay within the bounds of the rules of procedure and you don't try to show up the court or the judge. Midland can usually make fools of themselves with very little assistance. Just give them the rope and they will hang themselves, guaranteed. Here is a good thread about demolishing Midland. I'd start here and then come back with answers. We pretty much know it all and are the best there is so really you can't ask us anything that we won't know the answer or at least be able to get the answer for you. Plus we enjoy watching Midland going down to defeat at the hands of an unsophisicated credit info center consumer. S http://www.creditinfocenter.com/forums/there-lawyer-house/313112-all-inclusive-ive-been-sued-contacted-midland-whats-next-help-me.html http://www.creditinfocenter.com/forums/there-lawyer-house/312714-standing-when-dealing-jdb.html
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You're basically on the right path about summary judgement. Summary judgement is where the moving party (in this case them, the Plaintiff) basically says, Judge here are the undisputed facts where reasonable minds would not differ and this is so clear cut that a trial is not needed. Where most people get tripped up is they try to win their case in their summary judgement reply. If you have a strong defense that can be fine. Generally speaking, in cases like this, that is not the case. So what you want to do is argue there are material facts in question and a trial is needed. You don't have to say I would win at trial, you just have to show there is a need for a trial. You want to argue the facts are not so clear cut and a more formal and full blown trial is needed to get to the bottom of this. Pick at their case and raise legit disputes, don't concede anything and dispute and fight every step of the way, but you can't just say I dispute and leave it at that. You have to explain why, and I would recommend part of that explanation would require live witness testimony and/or some evidence that needs a trier of the facts (judge or jury ) to hear all sides and get more details. You basically have to show the court this is not a slam dunk and let's have a trail. And again, that does not require that you show the court you can win your case. You simply need to show the court there needs to be a trial and if 10 people looked at the evidence as it's presented in the motion for SJ that there would be several different conclusions drawn after examining that evidence, and those conclusions need a follow up, a trial.
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lack of prosecution is the argument you will want to make.
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Looks good as a start you probably need to brief the court on your position and list you authorities which you base your appeal. For example, what rule of procedure you are relying on for your appeal and any other authority that supports the appeal. I'm not talking about arguing your whole case, just an outline of the issues for the appeal and why you are entitled to what you are asking for. Another example would be something like, per Oregon rule of procedure 555.5555 the Defendant is appealing from whatever court to this court. You have it in your appeal where it says, if applicable. Show the court why it's applicable what you're asking for.
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I don't know the ins and outs of the Oregon court system but what you are thinking about as a clean slate is an appeal by de novo. Those are pretty rare and sometimes the full appeal might not be a de novo review. So look for that term in the court. That is at least a starting point for you.
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The first thing you need to do is make sure you attack their motion for summary judgement against you. I hate a$$ Acceptance but I can see where your request could be overly broad. I know what you meant and they know what you meant but you did just make a pretty broad request. Again, I know where you are going with this but you have to spoon feed those requests to the other side, especially if you are not limited in the amount of requests you can make. You need to be very specific about what you are asking for and if possible narrow down dates. Just like we do, if there is any defect with your requests at all you are opening the door for them to play dumb and act confused. I would recommend that you get down to business with finding material facts in dispute where a trier of the facts should order a trial to take place and where reasonable minds would differ as to those material facts which are in dispute. It's almost a 100% guarantee if you beat their motion for summary judgement you have just beat them. They don't have the evidence, generally speaking, and even if they can get it they don't want to spend the time and money to get it when they paid three cents on the dollar. You knock them out on the MSJ and you most likely win this thing going away. Concentrate on your MSJ right now.
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Thanks Savoir & G, let's hope we can pick up where we left off, everybody shake hands and circle the wagons and get back to demolishing the bad guys.
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I read yesterday where it was posted I was banned. I'm not sure if it was a cooling off period and I am not banned or if there is a glitch. If it's a glitch and I am banned then I apologize as I do not want to disrupt the board. Not sure how long this post will remain but I want to say a big THANK YOU to all of my friends on this board. My personal email that many friends on this board have was packed shortly after it was reported that I was banned. It was actually and onslaught of support and many shared stories of how I had helped them win. One poster even said they are heading out of town to Disney Land and it's because of a JDB FDCPA settlement check on a case I helped him. Again, thank you. I mean that. If I am not banned then let's get down to business as I will be winning against the other sides motion and I've got the law and precedent on my side, and I want to continue to help others and make friends. Thanks everybody and special thanks to: Bruno Savior Firststep Geelock Debt Zapper That provided me support with legal references and tips on continuing to win. Thank You ::BigGun::
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The bottom line is you need to make them prove their case. Yes, if you have a true affirmative defense then of course you raise, if not, you sued me, I don't think you can meet your burden on each element of proof required. That's a legit defense. It's saying, prove your case without any help from me. When somebody sues you there are certain elements of proof they must prove. That's just the way it is on any case and it goes without saying and it also does not require the other party to point out the elements pre-trial and how they will attack them. Any party suing has elements of proof they must meet and they are unspoken. For example, if they sue you for 5K then one of the elements of proof is proving 5K is the balance due. You don't have to tell the other side, I don't think you can prove I owe 5K as the balance. It's unspoken, it's just what they have to do. Let's say they prove 5K is the amount owed. They have met that element of proof. Then they have to prove standing (you owe it to the party suing you). If they do that they have met another element of proof. If they can't, then their element they did prove, 5K owed, is now useless because they lose because they could not met the standing element of proof. Again, it's unspoken that the party suing you has to prove they are the party that should be awarded the judgement. Works that same in criminal court. If you're charged with DWI, well an element of proof is proving you were driving. If the state can't prove you were driving, then you blowing triple the legal limit is useless. Yes, that proves the intoxication element but without the driving element there can be no DWI. This is all unspoken also. So don't get carried away with trying to be fancy with what you tell them. There are only certain defenses they are entitled to know prior to trial. All the other stuff are common elements of proof they have to meet and if they can't meet those elements of proof, they don't somehow get a free pass because you did not tell them you were going to dispute and fight them when they argued those elements. They have to prove those elements because they are the Plaintiff.
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Being Sued by JDB in Nevada
Coltfan1972 replied to HeatherW's topic in Is There a Lawyer in the House
Heather, I successfully argued a shorter statute of limitations for a credit card by arguing the open account via written contract. It was in Arkansas. It's a pretty technical argument that I made with a little set up in the discovery stage to set them up with some answers that I knew would help me with my argument. Also, I argued it as a motion for summary judgement and not a motion to dismiss as I did not want to tip my hand with a motion to dismiss and I needed some of their discovery responses that I obviously did not have at the time. Just FYI, it can be done. -
Just say your defense is that you are not legally liable to the Plaintiff. In other words you plead not guilty, not innocent, but not guilty as in they can meet their burden of proof. You are not saying you do owe the money or not and to whom, you're saying that your position is the Plaintiff can't meet their burden with admissible evidence. It's premature to speculate on what that evidence might be that you have to attack but it's not pre-mature to state that any evidence won't meet their burden of proof. It's like if the U.S.A. tells a country, go to war with us and you will lose because our military is the best in the world. The U.S.A. is not going to describe all the ways we are going to annhiliate you if you go to war with us because it's irrelevant because any strategy you use will lose because we are more powerful. In this case, you need to only get across that whatever the evidence or strategy you don't see any way the other side can meet their legal burden so you don't care what strategy they use. It's like a told a collection attorney once when they approached me an offer to settle. I said not interested. They said, but you have not even heard what we have to say. I said, it's irrelevant because I'm going to win no matter what so whatever your offer is, even if it's one cent is rejected because I'm going to win. I'm not saying you need to be that arrorgant but I'd just get it across to them that you don't have some fancy defense, you're just going to be the old fashioned way, making them actually meet their legal burden of proof, something you're betting they can't do no matter what strategy they try.
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Or they can come over here and we will educate them for free including full case precedent cites, links to the cases where we have destroyed them when they did not think the law applied to them, and will generally provide one hundred times better information and all for free. It's just what we do and we do it for free.
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