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Huey Pilot

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Everything posted by Huey Pilot

  1. Make it easy on your self. Go to the library or a local bookstore and purchase: Defending a Lawsuit by a Junk Dept Buyer (Debt Collection Agency) How a Florida Mom Beat Asset Acceptance, LLC By Sheila R Munoz It's got all the forms and all the instructions, actual filed examples, case law and everything you will need to beat PRA in Florida. I think a purchased a copy for less then $15.00 including freight to Oregon. Best, Huey
  2. The fact that the Plaintiff has not responded to your discovery requests is GOLDEN. I would immediately respond to their discovery request by denying everything. Use the forums standard answers. Most courts will deny a MSJ if discovery is not complete or if there is one outstanding fact. Annotate the missing discovery item by item in your reply to Plaintiffs MSJ and be sure to include all documents when you file your reply. Include an affidavit of denial of debt and get it notarized and send CMRRR to plaintiffs attorney after you file it with the court. Plaintiff is going for a quick Default Judgment and is trying to scare you away for going to court on the MSJ motion. Dont let them.
  3. I would stick with Bret Knewtson as he's one of the few attorneys that will take a collection case on prior to Oregon mandatory arbitration. It really doesn't matter what his approach is on the SOL. He just might get lucky at arbitration and win for you. Regardless the pressure will be on him by the Plaintiff to try to get you to settle. I WOULDN'T. Once you get past Arbitration and on to real Court you have a good chance of dismissal. I filed a number of pre-trial motions including a Defendants MSJ to run up the costs and have the documents available for re-trial at the Trial De Novo. (Also Automatic) The JDB's attorneys (both Johnson Mark & DNGPC) client (Midland) didn't want to go the $10,000.00 - $50,000 expense of attorney fees and flying in witnesses for real court so they dismissed with prejudice. After Arbitration you can get just about any attorney you want if necessary. HP
  4. Of Interest: http://www.gpo.gov/fdsys/pkg/USCOURTS-ksd-2_07-cv-02331/pdf/USCOURTS-ksd-2_07-cv-02331-0.pdf Check This: ARIZONA State Court Rules Arizona Supreme Court Rule 123. Public Access to the Judicial Records of the State of Arizona. Summary: Governs public access to judicial records generally. Generally mandates that public records such as Court records be kept open, with some exceptions for, e.g., financial account information, work product, some juvenile & criminal records. Procedure: Court must state reason for sealing. Arizona Rules of Civil procedure, Rule 26©. Protective Orders. Summary: Subsection (2) establishes the standard for any order “in any way restricting a party or person from disclosing information or materials produced in discovery to a person who is not a party to the litigation in which the information or materials are being discovered or denying an intervener's request for access to such discovery materials.” Procedure: The party seeking confidentiality must show why a confidentiality order should be entered or continued; the party or intervener opposing confidentiality must show why a confidentiality order should be denied in whole or part, modified or vacated. The burden is on the proponent of confidentiality. The court is required to make findings of fact on any relevant factors, including any possible risk to the public health, safety or financial welfare to which the information or materials in question may relate or reveal. Any order restricting release of the information or materials to nonparties or interveners must use the least restrictive means to maintain needed confidentiality. Federal District Court Local Rules District of Arizona Local Rule 1.3. Custody and Disposition of Exhibits and Sealed Documents. Summary: A document filed under seal in an action for which no trial commenced will be unsealed and eligible for destruction twenty-three years from the date of final judgment or final disposition. A document filed under seal in an action for which a trial commenced or an action was consolidated will be unsealed twenty-three years from the date final judgment or final disposition was entered and will remain stored as a permanent record. The rule does not apply to: documents placed under seal in a case in which final judgment or final disposition occurred prior to 1990; sexual abuse cases; or juvenile cases, unless the record has been expunged. Google Scholar: http://scholar.google.com/scholar?q=+Motion+to+Compel+++Arizona&btnG=&hl=en&as_sdt=4%2C3%2C135&as_vis=1
  5. WLS, Good Job! You showed up which places you ahead of better than Ninety Percent of the Defendants. You slammed the door on a quick Default Judgment and sent a clear message to the Plaintiff that you are going to fight and the battle will cost Midland a ton of money in attorney fees. There is now no easy win for either of you. You can't expect the Judge to dismiss the case at this point for any reason. The Plaintiffs MSJ was just testing the water to see how hot it was and maybe get a lucky quick default judgement and/or to scare you into not appearing. Your now back in the hunt and the real case begins. A couple of things: You are now in the drivers seat. Yes it was denied because of Plaintiff's no show. You filed your MSJ Reply. No point!!Your Header (Midland vs MLS) - I wouldn't use that successor to Chase Bank. It might be considered an agreement on your part to the chain of title and admitting standing? That's thin but these JDB attorneys are nit picky and you need to make them work for everything. "The devil's in the details".Provide them nothing ~ admit nothing.I would send the Plaintiff's attorney a letter on your letterhead stating that you will accept and agree to a motion for dismissal with prejudice at this time and that you are prepared to move ahead with all the pre-trial motions and actions necessary to reach the same conclusion. Continuance of action at this time will cost the Plaintiff anywhere from $10,000 to $50,000.00 to maintain the suit. This expense might be favorable to the JDB's attorney for fee's charged but economically not feasible for his client (Midland) who more than likely paid less than 35.00 for this alleged account that has no standing. Caselaw. Try to use only Georgia Caselaw as more than likely the Judge will ignore anything else. I again stress looking up Jill Sheridans Midland funding battle and win there in Georgia!!!! She has great caselaw and some superb examples of filings you can use in your case. WATCH ALL COURT DATES AND FILING DEADLINES LIKE A HAWK. DON'T MISS ANYTHING OR BE LATE. HP
  6. The most important thing to do is reply to their MSJ within the time frame allowed in GA. You have to get this action back to a regular trial. Any pre-trial motions at this point won't help you much if the Judge rules on the MSJ for the Plaintiff. Usually lack of complete discovery or missing documents you have requested but not received will trump their MSJ. Focus on that package. Take a serious look at all the documents from Jill Sheridan from Gwinnett County GA with a Google search. She has some of the best templates posted for her win against Midland Funding. Follow her examples and use her caselow as a guide. HP
  7. The Delaware three year borrowing statute definitely does no longer apply inn Oregon. Bret Knutson and his team argued that and lost. You will have to use the conventional means of defense which includes the automatic loss with mandatory Oregon Court Adjoined Arbitration. Just make sure you file all the paperwork on time every time. Once you appeal and get to regular court with a real judge, after arbitration, you will most likely win. In the mean time admit absolutely nothing. Keep filing requests for discovery and all the pre-trial motions to run the expenses up for the Plaintiff. Best of luck, HP
  8. Objection your honor - third party business records. OC is not Plaintiff. "I Don't Recall" ever having an account with this OC. Objection - Immaterial - I never have had any account with this JDB and owe them not one penny.
  9. Congratulations!! I always wanted to try this approach. Oregon Courts are famous for allowing JDB Plaintiff's to enter summons and complaints without any evidence. Timing is everything. A limited time slot opens when discovery can be requested as well as closing prior to mandatory Court Adjoined Arbitration. The whole process favors the Plaintiff and usually is an automatic win for the Plaintiff at the Arbitration level. I always thought that if the next day after receiving Summons and Complaint a Defendant filed a "MSJ for lack of evidence in lieu of Answer" the Plaintiff Attorney would be scrambling for time to maintain his action and stay within the time frame of the ORCP (Oregon Rules for Civil Procedure) and Oregon evidence rules. Purchasing the evidence package takes time and costs the Plaintiff money and if the Judge goes along with the motion a dismissal might just be possible. Texas has some better rules but the concept is similar. Did you file your motion before or after your requests on Plaintiff for Discovery? Regardless, this is a great win and a great procedure. Congratulations again. HP
  10. Your Caption and header should read. Defendants Reply in Opposition to Plaintiffs motion to dismiss defendant's counterclaims. Don't forget: File with the Court Provide a CMRRR copy of filings to opposing attorney memorandum with case law Attached affidavit of truthfulness Certificate of Service I'd use a cover letter directing correspondence action to both Court Clerk and opposing attorneyYou may not need all this but it's professional and will get you the judges ear. If this is a preliminary motion prior to arbitration you will have to coordinate a 15 minute oral argument with the Judge and opposing attorney. If you are presently assigned to Oregon's Mandatory Court Adjoined Arbitration do same with the Arbitrator. Keep running the bill up with time and paperwork for the opposing attorney. Use Arbitration as a dress rehearsal and a means to practice for real Court with a real Judge after your automatic loss with Oregon's corrupt Arbitration System. Your case will most likely be dismissed when you get to real Court and the Plaintiff is unable to pull off all their usual shenanigans.
  11. Don't count on anything and start preparing your Defense as if this never happened. Washington County is Corrupt and all they want is more money from both you and the law firm DNGPC. If it goes to outside Arbitration they lose a lot of potential revenue. Some have succeeded, most don't. Object to everything in writing and admit nothing but you name and address, HP
  12. Jill Sheridan fought this same battle against Midland in Georgia and Won. She as a huge amount of documents on the WEB and some excellent templates you could use. Here is one for starters: http://www.jdsupra.com/legalnews/judgement-in-favor-of-defendant-jill-she-65558/
  13. Jill Sheridan fought and won a similar credit card law suit in Gwinnet, Georgia against Midland Funding. She has posted tons of documents she used for her win on the following link: http://www.scribd.com/collections/3042742/Frederick-J-Hanna-and-Associates-Midland-Funding-v-Sheridan-Gwinnett-Georgia Yours being a Georgia case, and virtually the same lawsuit, these templates should be extremely helpful for case law, procedures, and how to generate the correct forms and responses. You can also do a Google search for, Midland Funding vs Jill Sheridan and obtain more specific information from various other links. HP
  14. The fact that you are appealing arbitration and going into trial de novo is not what the Junk Debt Buyer wants to hear or deal with. Now that you additionally have an attorney involved in the foray just add's more expense and improves your chances for dismissal. It cost's lot's of money to fly in witnesses and continue the expense of answering paperwork and responding to conference calls or meet and confer requirements, motions, man-hours billed and filing expenses so more than likely both attorneys will try to get you to negotiate a settlement. Go for the dismissal DNGPC is a volume lawfirm/collection agency and will prefer to drop the case and get on to others where they can obtain hundreds of simple default judgments for the same time and expense as your one case. HP
  15. one of the all time great wins against Midland Funding was against Jill Sheridan out of Gwinnett, Georgia. Do a Google search on lawsuits + jill sheridan and you will find a ton of documents to be used as examples with case law that will help you win your case. http://www.scribd.com/collections/3042742/Frederick-J-Hanna-and-Associates-Midland-Funding-v-Sheridan-Gwinnett-Georgia
  16. You might be able to call the Court Clerk and see when the hearing is to be scheduled. More then likely it hasn't been scheduled yet and depending on how backlogged the docket is it may take another 3 - 6 months or more. If the opposing party has not filed opposition/reply to your motion you might just be able to send a court order for a general judgment of dismissal to be signed by the presiding Judge. HP
  17. Way to go!! Once again this just proves that those dreaded affidavits are nothing more than bunk when denied and won't hold up in Court without a witness. Midland is so famous for trying to bluff their way through these cases and once they get challenged, and no easy default judgment is acquired, Midland has very little interest in pursuing much further action. If more people would just fight these cases this avenue of windfall income for Midland would mostly go away. HP
  18. Heartglass, I have attached a sample Motion with the included UTCR 5.010 you inquired about in your PM. This was in a "Motion to Compel Production of Documents I used against Midland Funding" HP UTCR 5.010 Example.pdf
  19. Congratulations on your settlement first off! Keep in mind that accountants are in the CYA business and quite anal retentive and the IRS is a pain in the same place. I have been in the same predicament many times business wise for various types of income. You are fortunate that this is pretty much the end of the tax year and you can lump this in your regular income tax filing. Yes, you will have to report the whole amount of/or what ever the check amount was because that's what your will receive a 1099 for. You can deduct the attorney fee's (parasite share) as a direct expense however don't do it in schedule "A". You will want to deduct the total amount received by the attorney. Maybe your same accountant can advise you on that also. Many attorneys have a considerable amount of training in tax preparation - ask you attorney to advise you as part of his included payoff!! Once you start filing quarterly income reports the IRS will hound you and audit you forever. (No big deal if you are presently filing quarterly tax reports) You will have to file zero income in these reports for the rest of your life, so it seems, or you will be charged penalties for not filing quarterlies. (That's Government for you). My suggestion would be to file your taxes early (right after the 1st of the year) and take the hit and save the future frustration with the IRS.
  20. Law Kitty, Welcome to the CIC Forum!! Your continued input can be mutually beneficial. We have several other lawyers that weigh in from time to time in various states offering tips, case law, and useful suggestions. The CIC forum has numerous Florida Posters that can share and offer up personal experience with Asset Acceptance, Midland Funding, and many others that will be useful to yourself and various clients concerned about consumer protection and/or unfair collection practices. You will want to read "DEFENDING A LAWSUIT BY A JUNK DEBT BUYER" How a Florida Mom Beat Asset Acceptance, LLC! by Sheila R. Munoz. This is a good start to finish account of how Sheila prevailed Pro Person against corporate giant AA with pleadings, communications, examples, actual templates, FDCPA violations and Florida Case Law. Especially useful to anyone in Florida going through a collection law suit. HP
  21. Waiting is in your best interest. I personally had an offer from Chase to settle for what amounted to 20% of the total. I verbally accepted however they sold off the debt to Midland Funding two weeks prior to my accumulating the funds to make payment. More then likely Chase will call you or propose a settlement in writing prior to selling or sueing. Chase can only hold the account by law for six months after default and then they must charge it off for either insurance settlement or tax accounting credits. Chase usually sells it off for what ever extra profit they can and take the charge for tax benefits claiming they whole amount. I doubt Chase will sue you as an original creditor so more then likely it will be sold off to a JDB and they will take the action. You might beat the SOL but keep in mind if your dealing with Asset Acceptance they will wait until the last week to sue thus accumulating maximum interest. Don't get false hopes - prepare and study. Learn about your answer denying everything, your affidavit denying any debt, your request for production of documents, your request for admissions, your motion to dismiss in lieu of answer if appropriate, other useful motions to frustrate the Plaintiff defending your self and edging towards dismissal. HP
  22. The simplest solution to this issue would be to file an Answer to the Summons/Complaint along with a fee waiver. That way you will have complied to the law suit requirements and ensuring that it won't go into default with a judgment on your record in addition. That will hold them off until discovery begins and that could be months. By that time you will have all the paperwork filed with your BK attorney and he can take the communications with the opposing attorney from there. Just post your complaint here with your name redacted and round up the amounts to the next thousand and posters on this forum can help you compile your answer and respond to the complaint. Then file your answer with the court within the time period specified in the summons. HP
  23. You might also consider a motion asking for sanctions for failure to meet discovery requirements. Sanctions could be asking for either $5000.00 or dismissal. Regardless any motion will require a meet and confer which can be done telephonically. HP
  24. One possible solution would be to play the game their way for the cost of postage to file each quarterly report form showing zero sales and zero dollars due for each of the quarters involved prior to filing the end of business paperwork with the state. Any back taxes due would still be zero and the penalties for filing late might apply but should be manageable or a t lest disputable. Your not dealing with rocket scientists here and these paper pushers have only one way of doing things. Just a possible suggestion, Best HP
  25. Your next step will be to file an ANSWER to the Complaint. You will have 20 days or time as indicated from the date shown as receipt of summons. Look up the Florida Rules for Civil Procedure for more specific's on the local requirements. You might be able to file a motion to compel private arbitration depending on the Florida rules. A (MTC) Motion to Compel is usually part of the discovery process where you need help getting documents from the Plaintiff and are requesting sanctions or dismissal from the Court for non-compliance to your previous requests for documents or admissions. Do a Google search for "Answer Template + Florida Credit Card Law Suit" and you should be able to find several examples and suggestions to follow. HP
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