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Motion to strike affidavit of debt based on hearsay rules


Baggins
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this motion is constantly denied under business records exception to hearsay.

Many judges are wrong about this issue.

Don't rely on motion to strike, expect it to be denied. I've filed 10 of these, all of them have been denied.

Do something more effective. Force Midland to arbitrate. That will increase their expense tremendously!

(Who's the OC? It makes a big difference!)

You exercising arbitration may put them completely back on their heals because you just waived their entire right to litigate the claim in court!!!!

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Serve the person most knowledgable of plaintiff a NOTICE TO APPEAR at trial. Look up your state rules of civil procedure to figure out how to properly format the NOTICE etc. But one thing I've consistently seen is that they will almost always NOT show up and lose because YOU DID.

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So when does one attack their bogus affidavit? I can see where MCM is trying to pull the wool over ones eyes as "Midland Credit Funding, Inc" is shown in a round about way as the OC and "Midland Funding, LLC" is shown as the "assignee". The TRUE OC is Citibank actually.

So would this be something to bring up in court or should we file something with the court first?

Edited by Baggins
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but I'm just warning you, don't have your entire defense reliant on the granting of the motion to strike!

Many judges, constantly, let complete crap in as evidence.

Prepare your defense on premise that judge will let the crap JDB affidavit in.

Just FYI.

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So if the judge allows the crap affidavit then we should attack it's validity in open court? Ie. was never entered into a signed contract with MCM etc?

This part always has me confused - the lack of privity defense. One does not need a signed contract with a company to contractually owe them money. It's basic contract assignment law. Any legal theory on the why this defense holds water (I see it used here a lot) would be greatly appreciated.

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Boy you never realize just how much the law can be bastardized into something totally opposite to it's actual intent until you end up in a mess like this. Sure you think you understand by watching the news and tv etc but geez it really hits home when you're dealing with liars like MCM. Let'em wrestle for a judgement, she makes $9745/yr GROSS. Good luck on a garnishment and judgements in MO cannot be renewed.

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One does not need a signed contract with a company to contractually owe them money. It's basic contract assignment law.

You don't need a signed contract but the CA or JDB would need to prove some type of recognized relationship.

If the CA cannot provide adequate assignment then the consumer can claim lack of privity. On the other hand, if the CA can prove assignment then the OC has passed on its relationship with the consumer to the CA. Here the lack of privity defense would be dismissed because the CA has shown a relationship between itself and the consumer via the assignment.

(Who's the OC? It makes a big difference!)

And, it makes a difference as to the wording of the affidavit. Is the affiant an employee of the CA and testifying that they have knowledge of the debt since it came into their possession for collection purposes? This would not be personal knowledge of the creation of the debt.

Conversely, if the affiant was working for the OC and testified to the creation and maintenance of the debt then the affidavit would be proper.

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The complaint states basically that Midland Funding LLC has knowledge of the debt held with Midland Credit Funding, Inc. Midland Funding LLC claims to be the "assignee" of the debt that as stated was "assigned" to them by Midland Credit Funding, Inc. Isn't this just total BS? I mean they the same bloody company! Seems like a loophole they're exploiting to me...

btw the OC is Citibank

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We had papers on midland credit management saying they bought debt from midland funding.

Funny thing the numbers to call mcm are the same as mfllc and same people answer.

We currently are in process of negotiating how much money they will be paying us for fdcpa violations.

Our lawyer didn't seem to think this name game was a scam but most likely a way of moving funds and debt and liabilty to make one of the company names look better on paper....

I always wondered why they did that too though.

Here in az midland funding had been sued by attorney general, the director of finc. Controller, and some other govt agencies, they had rules they had to come into compliance with and a fine. They did not fight suit, they settled asap.

And supposedly came into compliance.

I think its strange too... I wonder how often they do this...

And why.

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btw the OC is Citibank

Okay, if I remember correctly, Midland is a JDB. A JDB would have bought the debt from Citi. If this is the case then the affidavit is from a JDB, Midland. This affidavit is hearsay since the JDB does not know how the debt was created and maintained. The affidavit probably only details that they bought all rights to collect the debt and that they have maintained the debt since receiving it from Citi...or something similar.

I would file a MTS. If the judge denies the motiion then you have grounds for an appeal.

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Down is right-- the affidavit would have to be from Citi to be proper...

Here's what I did with my case when the JDB suing me entered their "affidavit" into "evidence":

Subpoena the affiant to appear in court for testimony. I ended up doing that, and of course she was "unavailable."

Filed subpoena for her employment record and resume. Some fighting by opposing attorney but managed to get her resume and it showed she'd only worked for JDB and Taco Bell (no offense Taco Bell)... then posed question as to how she can know the OC's methods of keeping records...

Introduced a couple of news stories from other states regarding falsified affidavits that this JDB used - and stated in my memo filed w/ court that "the affiant's employment resume shows she cannot have knowledge of the OC's bookkeeping practices... given that, and the fact that she is not available to testify in court - and may not even exist along with the past used of falsified affidavits in other states by this JBD points to this affidavit of being highly suspect and should be stricken."

That got the affidavit stricken. That collapsed the case case against me.

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Down is right-- the affidavit would have to be from Citi to be proper...

Here's what I did with my case when the JDB suing me entered their "affidavit" into "evidence":

Subpoena the affiant to appear in court for testimony. I ended up doing that, and of course she was "unavailable."

Filed subpoena for her employment record and resume. Some fighting by opposing attorney but managed to get her resume and it showed she'd only worked for JDB and Taco Bell (no offense Taco Bell)... then posed question as to how she can know the OC's methods of keeping records...

Introduced a couple of news stories from other states regarding falsified affidavits that this JDB used - and stated in my memo filed w/ court that "the affiant's employment resume shows she cannot have knowledge of the OC's bookkeeping practices... given that, and the fact that she is not available to testify in court - and may not even exist along with the past used of falsified affidavits in other states by this JBD points to this affidavit of being highly suspect and should be stricken."

That got the affidavit stricken. That collapsed the case case against me.

Good for you!! Excellent methodology!

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Ualbany , I know I still have a lot to learn , and I can see they can show you owe money , but most of the debt is late charges , over limit , excessive interest , lawyer fees and ect. and without the agreement / contract they can not show you agreed to any of those charges and if they produce the agreement you can now claim your rights to arbitration , all court fees and legal expenses they suffered to date would be harm they brought on oneself

Just an idea , why would it not work ? In arbitration the harm I suffered because of their wrongfully actions ( court action ) may offset the amount they are claiming .

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Admin , thanks for that site , -----------------Found this great document which gives numerous examples of case law in debt collection where evidence was thrown out based on hearsay:--------------I am in Florida , if I use case law other than Florida case law will the judge accept it ? I get mixed up from all the different states having different rules .

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but most of the debt is late charges , over limit , excessive interest , lawyer fees and ect. and without the agreement / contract they can not show you agreed to any of those charges

Unless the JDB does have, or does send for, the statements. In McFarland v Citi the court reasoned that:

based on McFarland’s usage of the credit card, we may reasonably infer that he impliedly agreed to pay a fixed amount equal to the purchases and cash advances he made, plus interest

Here's the entire case:

http://www.10thcoa.courts.state.tx.us/opinions/PDFOpinion.asp?OpinionId=9533

It is highly unlikely that any JDB will spend the money and time to send after the amount of statements needed. I just wanted you to know that it is possible for a court to decide that there was an agreement even though no agreement itself was proffered as evidence.

This court also finds that an affidavit from a person working for Citi is proper. But, from what I can find, Midland is a JDB. It doesn't matter whether they call themselves Midland Finance or Midland Management, either is not the OC. Any affidavit from any JDB is hearsay as to the creation and maintenance of the debt because they do not, and never did, work for the OC and cannot have personal knowledge.

What is the affiant's job title and who do they work for? And, what are they testifying to?

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Found this great document which gives numerous examples of case law in debt collection where evidence was thrown out based on hearsay:

http://www.ftc.gov/os/comments/debtcollectroundtable1/542930-00029.pdf

Thanks for posting this helpful link! Now can an example of a ruling in one state be used in another? Also since I just filed my answer to the complaint on friday 9/25 can I attempt at a motion to strike now? thnx

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