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MCM filed suit


mtnair
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1. Who is suing you?

2. For how much? under 2,200, includes interest, attorney fees and court costs.

3. Who is the original creditor? allegedly Houshold/Arbor

4. How do you know you are being sued? Served last spring

5. How were you served? Were you served? Someone came to the door and gave me the papers.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? Attorney sent dunning letter, I responded to letter with dispute w/in 30 days. They responded with suit.

7. Where do you live? California

8. When is the last time you paid on this account? allegedly two years ago

9. What is the status of your case? I answered suit, and also went to Case Management Conference last week, trial set for three months, by request of attorney.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes, but just recently.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Yes, with the attorney.

12. Does your summons require a response? Yes, sent answer in within allotted time. Did not put countersuit on answer, but did put as a point "Defendant reserves the right to amend and/or add additional answers, defenses and/or counterclaims at a later date.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Nothing was sent with original suit. But, for some reason the attorney thought the CMC last week was actually the trial, so they sent me their trial brief and a Declaration of Plantiff in Lieu of Live Testimony at trial. (will post more on that after this post.)

14. What is the SOL on the debt? Within SOL.

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The trial brief was very interesting.

Under Introduction they say Midland Credit Management (Hereinafter "Plaintiff") filed its complaint for $$ arising from a revolving credit account, which mtnair (Hereinafter "Defendent"), entered into with Planitff.

MCM doesn't issue credit cards!

Under Statement of Facts they say that the "Plaintiff agreed to extend to Defendent the use of Plantiff's credit facilities, and issued Defendent credit on account number XXXX"

Again, never applied for credit from MCM, never issued credit card from MCM.

They also claim that their business records do not show that Defendent ever properly objected to the correctness of any monthly statement.

After I disputed with the attorney MCM did mark my CR as in dispute, so this is in direct contrast with this statement.

They then claim since their was no dispute that "as a result, an account was stated by and between MCM and Defendent.

Interesting case in Velderman v Midland Credit Management, Inc. 2005 WL 2405959. It states the debt collector improperly informed the plaintiff that his failure to contest the debt at an earlier stage of the process shifted the legal burden to the plaintiff to disprove the debt. While the collector may assume after 30 days that the debt is valid, nonresponsivemenss on the part of the debtor does not change the legal status of the debt.

They then go on to say that they want XX amount of money for XX ans XX.

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The trial brief was very interesting.

Under Introduction they say Midland Credit Management (Hereinafter "Plaintiff") filed its complaint for $$ arising from a revolving credit account, which mtnair (Hereinafter "Defendent"), entered into with Planitff.

MCM doesn't issue credit cards!

MCM probably purchased the account from an OC, the terms of the OC's agreement (if you can find out who it is) probably say you agree to deal with any assignees the company may have to hire or sold the account to to collect on a default account.

(Ive had a ccc show me a copy of their agreement and sure enough, under default it says you are bound to the terms and conditions of any assignee they may have to hire or sell the account to.) This does not apply to all instances though, check to see if they have a copy of the original agreement with your signature as well as copies of statements as use of a credit card is usually agreement to their terms and conditions as well.

Under Statement of Facts they say that the "Plaintiff agreed to extend to Defendent the use of Plantiff's credit facilities, and issued Defendent credit on account number XXXX"

Again, MCM is probably the assignee of an OC

They also claim that their business records do not show that Defendent ever properly objected to the correctness of any monthly statement.

After I disputed with the attorney MCM did mark my CR as in dispute, so this is in direct contrast with this statement.

Did you dispute with any CRA's First? Also did you receive any dunn letters from MCM prior to receiving from Atty? If so, that would count as initial communication. Did you send letters CMRRR?

Interesting case in Velderman v Midland Credit Management, Inc. 2005 WL 2405959. It states the debt collector improperly informed the plaintiff that his failure to contest the debt at an earlier stage of the process shifted the legal burden to the plaintiff to disprove the debt. While the collector may assume after 30 days that the debt is valid, nonresponsivemenss on the part of the debtor does not change the legal status of the debt.

Let normy help with this. He knows more.

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Even more interesting is the Declaration of Plantiff in Lieu of Live Testimony at Trial.

First it says "I, ______________________, declares the following:"

There is a blank which was filled in in pen.

They say that they are responsible for the collection of past due debts owed the Plaintiff, and that they business records of MCM are under their control and they are custodian. They then say that if they were called upon to testify they would testify to all the facts stated in this declaration.

Household/Arbor has assigned all rights and interests in this matter to Plaintiff and attached a copy of it as an exihibit.

The bill of sale is between Household and MRC Recivables Corp. dated April 2002. It also refers to an attached Exhibit (Sale File) that is not included. It show it was executed in Dec. 2004. They also put a Cardmember agreement with this exhibit, dated 10/01

How does this show that MCM is the assignee?? Is MRC part of Encore also?? Guess I need to look that up. Why is there two and a half years between sale and execution. Card agreement is before sale and execution.

They claim that their records are reliable and and trust worthy. Also that each record was made near time of act and that they attached an exact duplicate of the original record.

They then say that Defendent applied for and entered into a credit agreement with Plaintiff Assignor Household, Arbor. Then goes on to say they do not have the original application nor a copy.

So.......... No proof of contact between defendent and Household.

Then they say purchases and payments were made be defendent... A true and correct copy of the Billing statements are attached.

They attached two so called bills from MCM both dated the same date, the first sheet saying to see reverse side for important information, so second sheet was probably the reverse side.

So........... No statements from OC showing the purchases and payments as they claim, and no multiple statements. By the way the address is wrong, the apt. /space number was not included.

They also claimed they maintained a computerized billing statement for me "on which debits and credits arising from the use of credit by Defendant were posted" They also claim they sent monthly statements.

They claim that I "failed to perform contractual obligation of making prescribed installment payments."

........What contract, they already said they didn't have one. Now they claim that this is an installement instead of a credit card.

Next they say that payments were due each month. Plaintiff "declared the entire balance on the promissory note immediately due and payable on XXX.

....... Now it is a promissory note........

They claim that the credit agreement provides that defendent shall be obligated to pay attorney's fees.

So what do you think of their case???

Any suggestions??

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Did you dispute with any CRA's First? No, I didn't dispute with the CRA until recently. They put the dispute in after the dispute to the attorney

Also did you receive any dunn letters from MCM prior to receiving from Atty?

There exhibits show they sent to wrong address.

Did you send letters CMRRR?

Yes.

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IMO, you've got a solid case.

They can claim the records they've purchased are trustworthy, but they have no knowledge of the recordkeeping practices that produced them, thus their assertions are hearsay.

Do they claim your account was opened before 10/01? If so, don't forget to contest the lawyer's fees and think seriously about filing an FDCPA counterclaim against them for unfair practices, citing 1692f(1):

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

If they can't produce the original contract, they can't show that the account holder was originally obligated to pay attorney's fees.

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