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Found 7 results

  1. I'd love some help from you guys. I got a summons and complaint 7 days ago. I've literally been doing nothing but researching for the past week. Also, I applied for legal aid, but have little hope they will help. They aren't even slated to contact me until next week. I'm going to be honest with you guys. I need a hand to hold. I have no idea what I'm supposed to do and it feels like a bottomless pit. I have a couple weeks until the deadline. So here are the facts, thus far: 1. I received a summons and complaint between my screen door and main door -along with the business card of the process server- last Monday. I plan to draft a motion to dismiss for insufficiency of service of process under Title 12 of the Oklahoma Statutes § 12-2012(b)(5) and § 12-2004. I've drafted a motion for this, along with a very basic Memorandum and Points of Authority outlining and quoting the above laws (basically stating that service wasn't valid because it wasn't given to me face to face. I plan to also write an affidavit and add it. I know that I have to send a copy of this to the other side and add a section that certifies that I sent it. QUESTION 1: Do I need to file an Notice of Appearance or a statement that I am representing myself Pro Per/Se? DISCUSSION: It might seem a little petty, but I feel like it is my right to be processed competently, and if this is the current local practice, it needs to be nipped in the bud. Also, I could use the extra time to respond seeing as how I am not a legal expert and it takes time to learn this stuff. In fact, I thought about motioning "TO DISMISS PURSUANT TO RULE 12(B)(5) FOR INSUFFICIENCY OF PROCESS OR IN THE ALTERNATIVE, EXTENDED TIME TO ANSWER OR RESPOND TO COMPLAINT." But I don't know if that second ask will make me waive my right to other defenses that I might want to keep. 2. They sent an "Affidavit of Indebtedness" --the official complaint calls it an 'Affidavit of Account' and I would love to point out that distinction if its ever useful to me, but i figure its just a small error and oversight. Still, I have an English degree and we are only second to lawyers about pointing out this sort of error- So the Affidavit is actually pretty much blubber and hearsay. No surprise there. In fact, I pretty much found the exact text of this affidavit online. I'm guessing it's an auto-form document. So, I'd like to motion to strike it from evidence or at least take all the teeth out of it because of the hearsay. 3. The complaint states that (specific info redacted) "1. BUBBA GUMP CREDITOR provided credit to the defendant on account number BUNCH-A-NUMBERS. Defendant defaulted on the obligation. The account has been assigned to Plaintiff. 2. Defendant owes Plaintiff $3333.33. An Affidavit of Account is attached hereto and incorporated by reference." 4. The Affidavit of Indebtedness (County of Stearns, Minnesota -- where all the women are strong, all the men are good looking, and all the children are above average, no doubt) states: (SPECIFIC INFO REDACTED) “PATSY MIDLAND, whose business address is 16 McLeland Road Suite 101, St. Cloud, MN 56303, certifies and says: 1. I am employed as a Legal Specialist and have access to pertinent account record for Midland Credit Management, Inc. (“MCM”), servicer of this account on behalf of Plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained on Plaintiff’s behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to Defendant’s BUBBA GUMP account XXXXXXXXX0000 (MCM Number 0000000) (hereinafter “the account”). I have access to and have reviewed the electronic records pertaining to the account maintained by MCM and am authorized to make this affidavit on Plaintiff’s behalf. The electronic records reviewed consist of data acquired from the seller when Plaintiff purchased the account, together with records generated by MCM in connection with servicing the account since the date the account was purchased by Plaintiff. 2. I am familiar with and trained on the manner and method by which MCM creates and maintains its business records pertaining to this account. The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record or compilation is made at or near the time of the act or event. 3. MCM’s records show that Defendant(s) owed a balance of $3333.33 as of 2017-08-21. 4. On or about 2016-11-16, MIDLAND FUNDING LLC became the successor in interest to this account. 5. Based on my review of MCM’s business records, 1) Defendant(s) opened the BUBBA GUMP CREDIT account on 2013-01-11; 2) the last payment posted to the account on 2016-03-22; and 3) the account was charged off on 2016-10-23. 6. On or about 2016-10-23, the account was sold from BUBBA GUMP CREDIT to ANOTHER CREDIT SERVICE L.L.C.. The account was then sold to the following debt buyers in order of occurrence on or about: 1. 2016-11-16, MIDLAND FUNDING LLC 7. If called to testify as a witness thereon, I could and would competently testify as to all the facts stated herein. I certify under penalty of perjury that the foregoing statements are true and correct.” 5. This is the only paperwork I have received. And I see a dozen other things I can possibly do. For example, I am a member of a federally recognized tribe living within that tribe’s jurisdiction on property owned by said tribe, in a house owned and leased by said tribe. I even work for said tribe. Technically, I could claim that the court lacks jurisdiction. But, then, I would have to do more research on tribal law (which probably mirrors state and federal law). I would gain no advantage other than time, and possibly lose several advantages. Something else I have been toying with (but admit I don’t know if it applies) is filing to dismiss for failure to state a claim based on threadbare recital/mere conclusory allegations, based on Twombly & Iqbal. Still another thing I could do is motion for the production of documents. Or send a letter of Debt Verification. Not to mention other Affirmative Defenses like Failure to Consider etc etc etc. But I don’t want to be frivolous about this. So, QUESTION 2: Do I roll some or all of these things in a big motion and slap them with it? Or do I motion the insufficient service first, and strategically collate a few of the other issues I can raise? Mainly, I fear waiving my rights to certain defenses if I do things in the wrong order. I want to bring up the insufficient service. I want to strike the affidavit as hearsay. I want to force them to produce any documents they have (And I’d just love to send THEM interrogatory during discovery.) But, I must say, my head is spinning and I have no idea where to start. Someone, please pull me to earth and pave the way. I can do the work and research, but the direction is lacking. Thanks for all the help, guys.
  2. Does anybody have any cites on hearsay exceptions for credit reports and CRA investigation results? In 2006 I lost a case because my exhibits were ruled to be hearsay as per Capital Funding v. Chase Manhattan Bank, 2005 U.S. Dist LEXIS 2212, no. 01-6093, *6 (E.D.Pa. Feb. 11, 2005) (affirming exclusion of credit reports as hearsay). And what is the effect of the "NOT PRECEDENTIAL" on the appeals court ruling? http://www.ca3.uscourts.gov/opinarch/044355np.pdf Now I got lucky because Equifax authenticated its investigation results, but I'd like to know whether Capital Funding is still the law of the land.
  3. this is my case: 1. Who is the named plaintiff in the suit? - Toyota motor credit 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) - Patenaude & Felix 3. How much are you being sued for? - $1300 when the complaint was filed in 2007/ after default was a set aside they have increased to $2600 4. Who is the original creditor? (if not the Plaintiff) - ToyotaMotor Credit, but in their cause of action they say they are the assignee for consideration 5. How do you know you are being sued? (You were served, right?) - Summon was not served, filed motion to set aside default for no servicee 6. How were you served? (Mail, In person, Notice on door) - no service 7. Was the service legal as required by your state? - no 8. What was your correspondence (if any) with the people suing you before you think you were being sued? - None 9. What state and county do you live in? - California, los angeles 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) - According to their claim, in 2006 11. What is the SOL on the debt? - 4 years in California 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name) - Complaint filed: 01/2007; Summons & Complaint served: no - General denial (PlD-050 form) Answer filed: 05/29/13 - Plaintiff's RFA, Special Interrogatories, and RFP served :no - Defendants Answers to RFA, Special Interrogatories, and RFP served:no - Defendant's RFA, Special Interrogatories, and RFP served:no - Plaintiff's Answers to RFA, Special Interrogatories, and RFP served :no - MSC scheduled for : never had one - Trial scheduled for 09/11/14 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) - No 14. Did you request debt validation before the suit was filed? (Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.) - No 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. - Already responded 16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment. - Breach of Contract, Common Counts on an open book account for money duebecause an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.For money paid,laid out,and expended to or for defendant at defendants special instance and request.Plaintiff entitled to attorney fees according to proof, in terms of contract and the automobile sales finance act 17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury. - No. The complaint is not verified. 18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit? -no. 19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. When they filed for default judgement in 2007 this is what they included in summons:Order granting copies in lieu of originalsRequest for dismissalRequest for entry of defaultWaiver of interest & attorney fees declarationAffidavit in support of request for entry of default judgement* stated in affidavit they are unable to obtain the originals, there not lost just misplaced* for evidence code sect. 1553Copy of a copy of a retail sales contractNotice of plan to sellAuction detailExplanation of deficiencyRepo invoiceOrder to show cause hearingWhen I found out in 2013 Filed -MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT : MOTION IS GRANTED Filed- NOTICE OF MOTION TO DISMISS WITH PREJUDICE Order - MOTION IS DENIED./ TRIAL SET 7/2014 Filed - APPLICATION FOR EX PARTE ORDER RE: FOR CONTINUANCE ON TRIAL HEARING *They never gave notice* APPLICATION GRANTED/ trial hearing continued to 9/2014 08/07/2014 NOTICE OF TRIAL FILED. 08/07/2014 NOTICE IN LIEU OF SUBPOENA TO APPEAR AT TRIAL FILED. 08/07/2014 PLAINTIFF'S TRIAL BRIEF FILED. 08/07/2014 DECLARATION OF PLAINTIFF IN LIEU OF PERSONAL TESTIMONY AT TRIAL CC. 98 FILED. 08/07/2014 PROOF OF SERVICE RE: NOTICE OF TRIAL, NOTICE IN LIEU OF SUBPOENA FILED. In there trial brief they have added a different witness for declaration. They say that they appoint electronic document processing legal services to to accept service of process in this matter on their behalf. That dos not seem right to me. All help appreciated. Thank you kindly.
  4. Hi Everyone, My hearing date is approaching and I'm not sure how to get a Declaration in Lieu of Live Testimony by the infamous Peter Huber thrown out. Do I subpoena, motion to strike, or something else? Help!
  5. Informative read for anyone arguing against Midland's or any other JDB's affidavits, or is a member of the class affected by this proposed settlement. 32 state attorneys general filed on April 16, 2014, an amicus curiae brief objecting to the revised proposed class settlement for Midland's use of "robo-signed" affidavits in Vassalle et. al v Midland Funding LLC, 708 F.3d 747, 760 (6th Cir. 2013). [You may recognize this as Class Settlement Agreement, Midland Funding, LLC v. Brent, 644 F. Supp. 2d 961 (N.D. Ohio 2009)] http://www.michiganconsumerlaw.com/ags-vassalle.pdf "The Attorneys General of Illinois, Alaska, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Mexico, New York, New Jersey, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Vermont, Washington, and West Virginia (“Attorneys General”) urge this Court to reject the revised proposed class settlement, which is a thinly veiled attempt to revive the original settlement, which was rejected by the Sixth Circuit. Like the original proposal, the revised settlement provides no meaningful value to unnamed class members, and, in fact, it leaves them in a significantly worse position. In exchange for approximately $10 each, class members lose their right to pursue valuable claims under state and federal law. While class members technically may challenge Midland’s “robo-signed” affidavits, they lose the statutory right to attorney fees that makes it possible for them to do so. Worse still, the form affidavits approved by the Special Master, which are central to the relief provided under the revised settlement, are based on a misunderstanding of Defendants’ business practices and would authorize affidavits that violate both the Federal Rules of Evidence and the laws of multiple States. The revised proposed settlement therefore is not in the public interest and should be rejected." Objections to Revised Settlement filed by the class action objectors' attorneys:http://www.michiganconsumerlaw.com/Objections-Final.pdf"The parties have attempted to ameliorate the first of these deficits by permitting individual class members to challenge the default judgments taken against them. But as set forth in section I above, while the parties have provided this remedy, they have also impaired the ability of class members to take advantage of that remedy by stripping their ability to use fee shifting statutes to find counsel, denying them access to necessary evidence, and removing their ability to move collective to set aside these judgments. In reality, they provided a remedy, but so severely crippled it as to render it empty."
  6. Business Records and Hearsay Objections, court procedure? I would like to ask a procedural question. If a plaintiff attempts to introduce a “business record”, and the defense objects that it is not qualify as a business record, but the plaintiff has the required support for admitting said business records...how would this typically be handled in a courtroom? Would the judge sustain the defense’s objection, but then offer the plaintiff an opportunity to demonstrate compliance with a business records exception? Is there such a thing as 'tentatively sustained'? Or would the judge defer on a ruling? I guess what I'm trying to figure out is...how could a custodian validate a business record at trial if the business record can’t be introduced until it’s been validated by the custodian...I know there must be a break in this circuit somewhere. Thanks!
  7. Check out this Texas case law regarding challenging 3rd party business records: http://scholar.google.com/scholar_case?case=10612691797526674821&q=dodeka++campos&hl=en&as_sdt=4,44&as_ylo=2012 Here is the relevant excerpt: "Finally, Campos [debtor] contends the [OC] records themselves are untrustworthy. However, we note that the creator of the documents, Chase, must keep careful records of its customer's accounts, otherwise its "business would greatly suffer or even fail." Id. at 244 (quoting Harris v. State, 846 S.W.2d 960, 964 (Tex.App.-Houston [1st Dist.] 1993, writ ref'd)). Furthermore, if Chase failed to keep accurate records, it could face criminal or civil penalties. Id.; see also TEX. FIN.CODE ANN. § 392.304(a)(8) (West 2006) (prohibiting consumer debt misrepresentation); TEX. FIN.CODE § 392.402 (providing criminal penalties for violations of Chapter 392 of the Texas Finance Code). We believe these circumstances lend support to Dodeka's [JDB] claim that the Chase documents are trustworthy." Am I reading this wrong, or is this court basically saying that a JDB doesn't need to establish the reliabiltiy of the original records; they are simply assumed to be reliable (and somehow magically not hearsay) because the OC wants to make money and can get in trouble if they lie? Here was the argument the debtor made: "Campos contends Chaffin did not have sufficient personal knowledge to attest to Chase's business records because Dodeka is a third party who purchased the account and was not the original author of the documents. Further, Campos argues that Chaffin is not qualified to testify about Chase's documents because she did not indicate that she or anyone from Dodeka knew of the events or conditions recorded in Chase's records or had knowledge of the manner in which Chase prepared the documents" Apparently, according to this court it doesn't matter that there was no personal knowlegde of the records when they were created; Chase's records are assumed to be trustworthy becasue they could "face penalties" otherwise. (This is especially ironic that this is Chase who is assumed to be trustworthy; see the affidavit to the government given by former Chase employee Linda Almonte.) What's especially galling about this is that they overturned the trial courts ruling. Since it was an apeal, they said "We will uphold the trial court's ruling on the exclusion of evidence if there is any legitimate basis for the ruling". So basically they are saying that the fact that there is no one that can attest to the veracity of the oc's documents is not a legitamate basis to exclude evidence. This new interpreation of the business records hearsay exception seems insane to me. The JDB afiidavit I received in my lawsuit includes almost the exact language from this case as to why the OC's records are reliable ("reliable because OC is required to keep good records by law and/or suffer busines loss"). I hope I am missing something, because this ruling seems to make it harder to exclude OC docs in Texas.
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