GDayMateAZ

Midland Funding vs. me in Arizona 2010

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Yes, it was signed and notarized two months before (June 2010)

before filing lawsuit (August 2010).

Titled simply: "Affidavit of Susan R."

Susan's MCM location is:

16 McLeland RD, Ste 101, St Cloud, MN 56303

As to the notarized statement in my case it is Titled Affidavit of Carina B. in Support of Plaintiff's Motion for Default Judgment.

There was no Motion for Default Judgment (but that doesn't surprise me because the judge never required any motions OF THEIRS to be in writing from them. He just ordered whatever it was that suited them). Anyway, if this document was signed by Carina B. back in April before the case was even filed against me then that doesn't seem quite kosher to me. And back in April there was no motion for default judgment because there was no case then. So that is just another example of how these things are churned out and no doubt put aside until needed.

Was yours signed and notarized months ago as well???

Edited by GDayMateAZ

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I'm surprised no one ever challenged this. It does seem unconstitutional to me. Because what they are saying is you can't defend yourself unless you pay to do so. And if you don't pay then falsehoods about you will go unchallenged.

I don't mean to belabor the point, I just can't see how this "flies".

I know in a criminal case you have a right to a speedy trial before a jury of your peers or some such but I'm not sure there is an equal statement as to civil. Irregardless, it seems a given to me that in a court of law you would not be prohibited from defending yourself merely because you hadn't the money.

Obviously if you want to FILE a lawsuit against someone then you need to come up with the money but at that point no charges have been levied so neither you nor the person you would have sued is being left "hanging" out there.

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The bright side: you can submit counterclaim for free together with your response and $50.00.

I decided to not bother with counterclaim

(too complicated to me at this time), and submitted only response

(following Occam's Razor rule "one should not increase, beyond what is necessary, the number of entities required to explain anything.")

.

I'm surprised no one ever challenged this. It does seem unconstitutional to me. Because what they are saying is you can't defend yourself unless you pay to do so. And if you don't pay then falsehoods about you will go unchallenged.

I don't mean to belabor the point, I just can't see how this "flies".

I know in a criminal case you have a right to a speedy trial before a jury of your peers or some such but I'm not sure there is an equal statement as to civil. Irregardless, it seems a given to me that in a court of law you would not be prohibited from defending yourself merely because you hadn't the money.

Obviously if you want to FILE a lawsuit against someone then you need to come up with the money but at that point no charges have been levied so neither you nor the person you would have sued is being left "hanging" out there.

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Yes, it was signed and notarized two months before (06/15/2010)

before filing lawsuit (08/11/10).

Titled simply: "Affidavit of Susan R."

Susan's location is:

16 McLeland RD, Ste 101, St Cloud, MN 56303

It's still a puzzle, who is there: MCM or Encore ?

It appears to be an address for MIDLAND CREDIT MANAGEMENT INC.

That is the same address that is on the affidavit in my file.

Here's some interesting stuff for ya:

http://www.newyorkconsumerprotection.com/consumer-law-help/debt-collection/midland-funding-llc

Midland Funding, LLC (and Midland Credit Management, Inc., and MRC Receivables, Corp.)

  • Midland Funding, LLC is a high volume debt buyer. The company is a subsidiary of the Encore Capital Group, Inc, and its headquarters are located at 8875 Aero Drive Suite 200, San Diego, CA 92123 and 4302 E. Broadway Road, Phoenix, AZ 85040. There are several other, related “Midland” entities, including Midland Credit Management, Inc. and MRC Receivables Corp.
  • Cohen & Slamowitz, LLP, often represents Midland Funding, LLC and its related companies in New York collection litigation.
  • Midland Funding, LLC has been sued in courts across the country for debt collection abuse, harassment and for other unfair and deceptive debt collection practices.
  • Schlanger & Schlanger, LLP has successfully litigated cases involving Midland Funding and/or its related companies, involving unfair debt collection practices and other violations of the FDCPA (Fair Debt Collection Practices Act).
  • For example, Schlanger and Schlanger, LLP recently brought a Fair Debt Collection Practices (FDCPA) lawsuit against Midland’s collection attorneys Cohen & Slamowitz for debt collection abuse based on collection methods used against a consumer on a Midland debt. Specifically, we sued Cohen & Slamowitz for harassing a consumer regarding a debt she had already settled in full. Cohen and Slamowtiz unsuccessfully attempted to have our case dismissed. Federal Judge Colleen McMahon denied the motion, described Cohen & Slamowitz’s arguments as “idiotic” and sanctioned Cohen & Slamowitz for the “utter frivolousness” of its motion. Click here to read the Court’s opinion. Shortly afterwards, the case settled for $10,000 plus reasonable attorneys’ fees and costs, which are to be determined by the Court.
  • In Midland Funding v. Shepherd, Midland sued Schlanger & Schlanger’s client to collect an old credit card debt. Midland’s process server claimed to have served our client’s husband, who had passed away several years earlier. The Court threw out the case and awarded our client costs in response to this debt collection abuse. (Click here to read the Court’s opinion.)
  • A recent investigative report by MFY Legal Services, Inc. found that in 2007, Midland Funding filed 26,998 cases in New York City alone. See Consumer Rights Project, “Justice Disserved,” June 2008. The consumer responded in only 6.29 percent of those cases. Thus, the vast majority of those cases resulted in default judgments against the consumer.

If Midland Funding, LLC, Midland Credit Management, Inc. or MRC Receivables Corp. are harassing you or using false or unfair collection practices against you, contact the consumer lawyers at Schlanger & Schlanger, LLP at 1-800-685-2500 or by filling out our consumer questionnaire.

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Also: *You need to support your argument in your MTS - include and cite your RCP then cite case law - ADD those that are applicable to substantiate your reason to strike. BUILD FOUNDATION IN CONTRUCTION OF THE LANGUAGE of your BRIEF.

Affidavits are often submitted to prove default that are conclusory and insufficient. Manufacturers & Traders Trust Co. v. Medina, 01 C 768, 2001 WL 1558278, 2001 U.S. Dist. LEXIS 20409 (N.D.Ill., Dec. 5, 2001); Cole Taylor Bank v. Corrigan, 230 Ill.App.3d 122, 129, 595 N.E.2d 177, 181-82 (2nd Dist. 1992) (where bank officer's "affidavit essentially consisted of a summary of unnamed records at the bank," unaccompanied by records themselves and unsupported by facts establishing basis of officer's knowledge, foundation was lacking for admission of officer's opinion regarding amount due on loan); Asset Acceptance Corp. v. Proctor, 156 Ohio App. 3d 60; 804 N.E.2d 975 (2004). Computer-generated bank records or testimony based thereon are often offered without proper foundation, or are summarized without being introduced. Manufacturers & Traders Trust Co. v. Medina, supra; FDIC v. Carabetta, 55 Conn.App. 369, 739 A.2d 301 (1999), leave to appeal denied, 251 Conn. 927; 742 A.2d 362 (1999).

Testimony, whether live or in the form of an affidavit, to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent; rather, the records must be introduced after a proper foundation is provided. Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6; 679 S.E.2d 57 (2009); New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 680 A.2d 301, 308- 09 (1996), later opinion, 246 Conn. 594, 717 A.2d 713 (1998); Cole Taylor Bank v. Corrigan, supra, 230 Ill.App.3d 122, 129, 595 N.E.2d 177, 181 (2nd Dist. 1992) (bank officer's affidavit summarizing bank records insufficient where it did not show the officer's familiarity with the amounts disbursed or collected or provide the documents upon which he relied as to his conclusion as to the amount due); Hawai'i Cmty. Fed. Credit Union v. Keka, 94 Haw. 213, 222, 11 P.3d 1 (2000) (following Corrigan). It is the business records that constitute the evidence, not the testimony of the witness referring to them. In re A.B., 308 Ill.App. 3d 227, 236, 719 N.E.2d348 (2nd Dist. 1999) (“Under the business records exception . . . it is the business record itself, not the testimony of a witness who makes reference to the record, which is admissible . . . . In other words, a witness is not permitted to testify as to the contents of the document or provide a summary thereof; the document speaks for itself. M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 803.10, at 825 (7th ed. 1999).”) [CHECK YOUR STATE RCPs] ; Topps v. Unicorn Ins. Co., 271 Ill. App. 3d 111, 116, 648 N.E.2d 214 (1st Dist. 1995) (“under the business record exception to the hearsay rule, only the business record itself is admissible into evidence rather than the testimony of the witness who makes reference to the record”); Northern Illinois Gas Co. v. Vincent DiVito Constr., 214 Ill. App. 3d 203, 215, 573 N.E.2d 243, 252 (2nd Dist. 1991) (“The business records exception to the hearsay rule (134 Ill. 2d R. 236) makes it apparent that it is only the business record itself which is admissible, and not the testimony of a witness who makes reference to the record”).[CHECK YOUR STATE RCP'S]

A witness cannot “testify” by regurgitating the content of business records that a witness has reviewed when the witness has not seen or heard the events in question. Such regurgitation is hearsay, plain and simple. Wahad v. Federal Bureau of Investigation, 179 F.R.D. 429, 438 (S.D.N.Y 1998); In re McLemore, 2004 Ohio 680, 2004 Ohio App. LEXIS 591, *P9 (Ohio App. 2004); Nebraska v. Ward, 510 N.W.2d 320, 324 (Neb. App. 1993).. “There is no hearsay exception . . . that allows a witness to give hearsay testimony of the content of business records based only upon a review of the records.” Grant v. Forgash, 1995 Ohio App. LEXIS 5900, *13 (Ohio App. 1995). See generally, Trujillo v. Apple Computer, 578 F. Supp. 2d 979 (N.D.Ill. 2008), condemning the inclusion in an affidavit of information supplied by others.

Nor is such an affidavit made sufficient by omitting the fact that it is based on a review of loan records, if it appears that the affiant did not personally receive or observe the reception of all of the borrower’s payments. Hawaii Community Federal Credit Union v. Keka, supra, 94 Haw. 213, 11 P.3d 1, 10 (2000). If the underlying records are voluminous, a person who has extracted the necessary information may testify to that fact, but the underlying records must be made available to the court and opposing party.

In re deLarco, 313 Ill.App.3d 107, 728 N.E.2d 1278 (2nd Dist. 2000).

Edited by FL4answer58

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Creditors can sometimes prove their case; debt buyers usually cannot - broken chain of assignment.

In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L.Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt buyer “assignment” that does not refer to specific accounts does not establish ownership by the plaintiff, nor is testimony based on a computer screen sufficient:

"The Court has reviewed the documents presented by the

Plaintiff, Bill of Sale and the Assignment, and finds that they

fail to sufficiently identify the accounts that were assigned or

sold to the Plaintiff. Neither the Bill of Sale nor the Assignment

indicate the account numbers or names of account holders.

They do not provide any information that would allow the

Court to determine if the alleged account of Defendant was one

of the accounts sold or assigned to the Plaintiff. Without any

indicia of ownership that would sufficiently identify the true

owner of the account at the time that Plaintiff filed this action,

the Plaintiff is unable to prove that it had standing to bring the

action. An assignment is the basis of the Plaintiff’s standing to

invoke the processes of the Court in the first place and is

therefore an essential element of proof. Progressive Express Ins.

Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285

(Fla. 2nd DCA 2005); Oglesby v. State Farm Mutual Automobile

Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001). “Only the insured

or medical provider ‘owns’ the cause of action against the

insurer at any one time.” Id. at 470."

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**Don't just add or cite the case WITHOUT reading and reading the case again - never cite a case you have not read -

You would not be surprised how many times I have merely scanned over anothers’ description or 'interpretation' of a case (even in PACER). Then cite in my own brief essentially regurgitating the content I have read, only to have the judge deem it conclusory and insufficient.

READ THE CASE - UNDERSTAND THE PREMIS [construction] OF THE ARGUMENT BEFORE USE.

Edited by FL4answer58

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Creditors can sometimes prove their case; debt buyers usually cannot - broken chain of assignment.

In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L.Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt buyer “assignment” that does not refer to specific accounts does not establish ownership by the plaintiff, nor is testimony based on a computer screen sufficient:

"The Court has reviewed the documents presented by the

Plaintiff, Bill of Sale and the Assignment, and finds that they

fail to sufficiently identify the accounts that were assigned or

sold to the Plaintiff. Neither the Bill of Sale nor the Assignment

indicate the account numbers or names of account holders.

They do not provide any information that would allow the

Court to determine if the alleged account of Defendant was one

of the accounts sold or assigned to the Plaintiff. Without any

indicia of ownership that would sufficiently identify the true

owner of the account at the time that Plaintiff filed this action,

the Plaintiff is unable to prove that it had standing to bring the

action. An assignment is the basis of the Plaintiff’s standing to

invoke the processes of the Court in the first place and is

therefore an essential element of proof. Progressive Express Ins.

Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285

(Fla. 2nd DCA 2005); Oglesby v. State Farm Mutual Automobile

Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001). “Only the insured

or medical provider ‘owns’ the cause of action against the

insurer at any one time.” Id. at 470."

Can I use this in California Superior, or can you only use it in Florida?

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FL4answers, Thanks a lot !

I made some research.

The main source "Florida Law Weekly"

http://www.floridalawweekly.com/flwonline/

is not free: 2-Hour Access: $30, 24-Hour Access: $60.

Online databases cover the following years:

Florida Law Weekly: January, 1995 - Present

FLW Federal: March, 2001 - Present

FLW Supplement: October, 1992 - Present

Orange County Clerk of Courts website gave this summary:

CITIBANK AND FIRST USA BANK vs CAVENDER, DONNA

(not Unifund).

Case No. 2007-CC-003040-O

Defendant's Atty: Dennis Chen

The link is:

http://myclerk.myorangeclerk.com/CaseDetail.aspx?CaseID=1219263

I'm trying to get maximum info about this case,

because the "my" Plaintiff's Atty sent me very Generic Bill of Sale (Exhibit "A")

2 months before filing.

I'm thinking: should I file a MTS now (without knowledge if it was filed

with the Court) or wait ...

Creditors can sometimes prove their case; debt buyers usually cannot - broken chain of assignment.

In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L.Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt buyer “assignment” that does not refer to specific accounts does not establish ownership by the plaintiff, nor is testimony based on a computer screen sufficient:

"The Court has reviewed the documents presented by the

Plaintiff, Bill of Sale and the Assignment, and finds that they

fail to sufficiently identify the accounts that were assigned or

sold to the Plaintiff.

Neither the Bill of Sale nor the Assignment

indicate the account numbers or names of account holders.

They do not provide any information that would allow the

Court to determine if the alleged account of Defendant was one

of the accounts sold or assigned to the Plaintiff. Without any

indicia of ownership that would sufficiently identify the true

owner of the account at the time that Plaintiff filed this action,

the Plaintiff is unable to prove that it had standing to bring the

action. An assignment is the basis of the Plaintiff’s standing to

invoke the processes of the Court in the first place and is

therefore an essential element of proof.

"

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I've just found on the Justice Courts website, that my Pre-trial conference will be December 02. As of today, did not get any response from Plaintiff/Atty.

I am interested to know how your case is progressing .... Any information you can give will be appreciated.

Hope things work out well for you.

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Recent developments the last 2 weeks.

1. The Plaintiff's Atty sent me "Disclosure Statement" where he summons to testify on the future trial both me and my wife. He attached to this statement

the same old stuff: copies of OC statements, Affidavit of Debt (my "Hearsay" MTS is still pending), two faxed "Bills of Sale" (between OC and MCM): one without any account # and another one with a different account #.

The new attachment is boiler-plate CC agreement for "Visa and Mastercard" with terms and conditions

dated 2007 and faxed from unknown location to area code 301 (Maryland) in 2009.

2. Atty submitted to the court MTS my Amended Response completely.

I'm writing my response now.

3. Atty asked Court to allow him to attend the Pre-Trial Conf by phone, without driving 100 miles from Tucson.

Edited by GDayMateAZ

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AFFIRMATIVE DEFENSES

1. Plaintiff has failed to name correctly all necessary parties. “Jane Doe” is unknown to Defendant.

2. Plaintiff lacks standing.

3. Plaintiff has not proven that it was authorized and licensed to collect claims for others in the State of Arizona, or solicit the right to collect or receive payment of a claim of another.

4. Plaintiff has not proven that it acquired the alleged account from OC.

5. Plaintiff has not proven that it is the real party in interest. Defendant demands proof of ownership specifically that the alleged account is the legal property of Plaintiff with all of the original creditor’s rights and privileges intact.

6. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and is not signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

7. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

8. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than Plaintiff is entitled to receive.

9. Plaintiff's alleged damages are limited to real or actual damages only.

For estimation these actual damages, Defendant attaches a Memo from Plaintiff to U.S. Federal Trade Commission dated by July 31st, 2009. This memo states (at the bottom of the 1st page 3rd Paragraph) that Plaintiff has invested $1.3 Billion to acquire 27 million consumer accounts with a face value of $43 Billion. The simple mathematical action of division shows that Plaintiff has paid in average $48.15 for each consumer account.

10. Plaintiff admits to purchasing the alleged account, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

11. Plaintiff has provided no sworn statement testifying to the accuracy or validity of its recollection of the alleged account.

12. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time (for example, if a real party in interest is established for alleged account).

13. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

14. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

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AFFIRMATIVE DEFENSES

1. This Complaint is not substantiated with proper evidence supporting the Plaintiff’s claims, whereas such initial supporting documentation is required by Federal Rules of Civil Procedure (hereafter “FCRP”), Rule 26(a)(1).

2. The Plaintiff lacks standing to bring this suit against any of Defendants,

since at no time did the Defendants cause any harm to the Plaintiff:

a) the Defendants have never had any sort of relationship, business

or otherwise, with the Plaintiff;

B) at no time did the Defendants become indebted to the Plaintiff;

c) as such, the Defendants have no obligation to the Plaintiff, monetary or otherwise.

3. The Defendants claim Lack of Privity as both Defendants have never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

4. The Plaintiff has not proven that it has acquired the alleged account from OC.

5. The Plaintiff has not proven that it is the real party in interest.

The Defendants demand proof of ownership specifically that the alleged account

is the legal property of the Plaintiff with all of the original creditor’s rights

and privileges intact.

6. The Plaintiff's claims are barred by the Statute of Frauds (A.R.S. §44-101) as the purported

contract or agreement falls within a class of contracts or agreements required to be in writing.

The purported contract or agreement alleged in the Complaint is not in writing and

is not signed by both Defendants or by some other person authorized by the Defendants

and who was to answer for the alleged debt, default or miscarriage of another person.

7. The Defendants allege that the granting of the Plaintiff's demand in the Complaint

would result in Unjust Enrichment, as the Plaintiff would receive more money

than the Plaintiff is entitled to receive.

8. The Plaintiff's alleged damages are limited to real or actual damages only.

For estimation these actual damages, the Defendants attach a Memo from the Plaintiff to

U.S. Federal Trade Commission dated by July 31st, 2009 (Exhibit 1).

This memo states (at the bottom of the 1st page 3rd Paragraph) that Plaintiff has invested

$1.3 Billion to acquire 27 million consumer accounts with a face value of $43 Billion.

The simple mathematical action of division shows that the Plaintiff has paid in average

$48.15 for each consumer account, whereas

the Plaintiff claims the damage in the amount of $X,XXX.XX.

9. The Plaintiff admits voluntarily purchasing the alleged account,

causing the Plaintiff's damages to its own self, therefore Plaintiff is barred

from seeking relief for these damages.

10. The Plaintiff has not proven that it is authorized and licensed to collect claims for others

in the State of Arizona, or solicit the right to collect or receive payment

of a claim of another.

11. The Defendants reserve the right to plead other affirmative defenses that

may become applicable and/or available at a later time.

12. The Defendants reserve the right to submit counterclaims that may become

applicable and/or available at a later time.

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Motion to Strike Defendants' Amended Answer

COMES NOW Plaintiff .. and hereby requests that this Court strike the Defendants' Amended Answer filed XXX, 2010 in its entirety.

Pursuant to ARCP 15(a)(1), a party may amend the party's pleading once as a matter of course at any time

before a responsive pleading is served or, if pleading is one to which no responsive pleading is permitted.

and the action has not be placed upon the trial calendar, the party may so amend it at any time

within 20 days after it is served.

Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party.

Defendants' original Answer was filed YYYY 2010, and that Answer is not a pleading to which a responsive pleading is

permitted. As Defendants waited NN days, until ZZZZ 2010, Defendants were not permitted to Amend their Answer without

leave of Court pursuant ARCP 15.

Therefore, Plaintiff respectfully requests that this Court strike the Defendants' Amended Answer in its entirety.

========================

November 2010: This Motion was denied by Judge

Edited by GDayMateAZ

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Ohio

Ok so I received one of these affidavits as well. It came along with the Plaintiff's Motion for Leave to File Motion for Summary Judgement Instanter and a Notice of Non-Oral Hearing.

Attached to the Motion for SJ is Exhibit A-Affidavit of XXX XXX., legal spec. for MCM. It was signed and notarized months before the case was filed.

Exhibit B- CC statement showing $0 owed due to charge off.

Exhibit C- Bill of sale between OC and Midland Funding. Does not list what they bought or the account they are suing over. Just a general statement, signed by the OC.

So should I file a motion to strike?

As like everyone else's "affidavit" it states this person has "personal knowledge" of records maintained on Plaintiff's behalf. (yeah...so what?)

Also in my original request for production the Plaintiff responded by stating "Plaintiff does not have possession, custody, or control of the original signed contract as it may not be available. Plaintiff is not the OC in this matter, and therefore does not have an original signed contract baring the Defendant's signature".

Nor did they even have a copy.

It's a weak case but I need some input as how to proceed from here.

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Ashley H, WOULD THAT E ASHLEY hOFFMAN THAT FILED THE SUIT AGAINST ME.

My Affiant is Carina B. who says she is a "Legal Spe******t" (probably because the sole purpose of her job is to fill out this ridiculous affidavits and it appears more impressive coming from a "Legal Spe******t". She is located in St. Cloud, MN, her prior job was as part of a "crew" at a Taco chain.

Her affidavit was notarized by Ashley H. It occurs to me wouldn't it be interesting if these legal spe******ts notarized each other's affidavits? That is described as part of their job, so if all they are doing is preparing these affidavits why would they need to be a notary? Online she lists herself as a legal spe******t with ENCORE which of course is part of Midland Funding so her affidavit, apart from the fact it proves nothing except how desperate they are, is certainly not from someone objective.

What it amounts to is someone from the same company basically affirming what seedy lawyers say as the truth. What a deal, get your secretary to say you are telling the truth and you have the keys to the kingdom. OF COURSE, that might be HER JOB and since it is if she doesn't back you up she's out on her ear so yeah, very objective.

In my case its interesting because she states she as access to "pertinent account records for Midland Credit Management, Inc. (MCM)

In my case, Carina B's statement that she has "access to pertinent account records of Midland Credit Managment, Inc. (MCM)" is misleading it seems to me. She never states that she is employed by this group. Furthermore, in my case I am being sued by Midland Funding LLC and so why are we admitting "evidence" from Midland Credit Management? Midland Credit Management is not a party to the case nor is Citibank from whence the charges came. If they can't prove that Citibank sold them this debt then they have no case. Which is where we were when I got STUNNED by an overeager judge (overeager being a generous term on my part) and plaintiff's attorney.

Each of her tasks at work basically amounts to the same thing. She spends her day filling in the blanks for whatever bit of "proof" they are wanting at the time.

This is from your affidavit :

Managing the evaluation of the documents, proof reading, ensuring accuracy and completeness

of documentation, as well as escalation and resolution of non-conforming docurments (sic !!) to quickley (sic !!) resolve discrepancies.

Affidavit Types: Default Judgment, Motion for Summary Judgement, Affidavit of Lost Instrument, Affidavit of Indebtedness, Affidavit in Lieu of Testimony, Chain of Title Affidavit

Notary Public

In both cases (yours and mine) these spe******ts are relatively new having come onboard 2009 (I bet they don't last long).

And your person says part of her job is proof reading (not proofreading) and she has numerous errors in spelling so I guess she isn't too good at her job.

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I have been sued as well. Have a couple of days before default judgment is given. Need to amend answers. affidavit of debt states account number and conclusions that I owe and only has one attachment, agreement rules for Chase. Chase was not OC, WAMU bought by Chase. No other Account info included or mentioned in affidavit but C. Schaefer, legal spe******t states they were assigned all rights of OC, amount owe, due, etc. No other attachments of anything but conclusion of my guilt in affidavit. No real evidence to speak of. Lawyer didn't include the document he filled out with complaint called "Notification to Parties", the document we both fill out at the Court to request summons or to Answer. Does it matter. I told court in my Answer. NO response from court yet. Gotta get answer modification in with responsive pleas or defenses I assume.

Need to file responsive pleading or defenses in response to plaintiff filing application for default. I would like to file tomorrow.

Where do I get cases to read listed to use in MTS. Are those ready to use in AZ? If specifics are needed to help, please ask & email me. Very Glad I found this sight. Had to pay $50 too to Answer. I get to modify answer.

Already got Disclosure from attorney. Attorney says has no additional evidence, disclosed all with affidavit. He will call witness who will testify as to nature of contract, the credit transactions, current balance including interest, attorney fees and costs. none of these are in evidence. I need to get my Disclosure to him as well. How much time do I have to respond to his Disclosure? I'm learning fast, a little late for original answers but I basically denied everything except the obvious. I didn't use much defense due to ignorance, need to get that in today or tomorrow. Have ten judicial days from date of mailing, 7 Oct according to mail stamp, but he says he mailed the 5th. It says I have 15 days from that date. Which is true?

Can anyone help this military Veteran in AZ? Help!

Edited by helpinAZ
addition

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@ndigoesagain

1. Absolutely, YES.

2. In Nyankojo v. North Star Capital Acquisition, 679 SE 2d 57 - Ga: Court of Appeals 2009, the Court held:

"We have held that testimony regarding the contents of business records,

unsupported by the records themselves, by one without personal knowledge of the facts constitutes inadmissible hearsay." ... it appears that his [Affiant's] knowledge of these facts was based on his review

of the records and not his personal knowledge.

In Martinez v. Midland Credit Management, Inc., 250 SW 3d 481 - Tex: Court of Appeals, 8th Dist. 2008, the Court held:

Although rule 803(6) does not require the predicate witness to be the record's creatoror have personal knowledge of the content of the record, the witness must have personal knowledge

of the manner in which the records were prepared.

In re K.C.P., 142 S.W.3d 574, 578 (Tex. App.-Texarkana 2004, no pet.).

Documents received from another entity are not admissible under rule 803(6), if the witness is not qualified to testify about the entity's record keeping.

See Powell v. Vavro, McDonald, & Assoc., L.L.C., 136 S.W.3d 762, 765 (Tex.App.-Dallas 2004, no pet.)

(custodian of records for travel agency was not qualified to testify

as to records received from third-party company,

showing credits to customers' credit card account).

In this case, the affiant does not provide any information

that would indicate that he (or she) is qualified to testify as

to the record-keeping practices of the "predecessor."

The affiant does not identify the predecessor,

nor does he provide any information concerning the acquisition of the attached record.

The affiant does not indicate in any way that he has any knowledge

of the predecessor's record-keeping policies or that the records are trustworthy.

In fact, the affiant does not even provide his full name.

As such, the Mart Affidavit did not satisfy the requirements of rule 803(6),

and the trial court erred by admitting it.

3. So, they failed to produce all that suff you asked ?!

Good for you !

State it in your paperwork you file with court.

Ohio

1. So should I file a motion to strike?

2. As like everyone else's "affidavit" it states this person has "personal knowledge" of records maintained on Plaintiff's behalf. (yeah...so what?)

3. Also in my original request for production the Plaintiff responded by stating "Plaintiff does not have possession, custody, or control of the original signed contract as it may not be available. Plaintiff is not the OC in this matter, and therefore does not have an original signed contract baring the Defendant's signature".

Nor did they even have a copy.

It's a weak case but I need some input as how to proceed from here.

Edited by GDayMateAZ

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@ indigoesagain

Another example of MCM providing “patently false” affidavits: a similar affidavit was found to be false in Midland Credit Management, Inc. v. Brent, 3:08cv1434, 2009 U.S. Dist. LEXIS 70650, 2009 WL 2437243 (N.D. Ohio Aug. 11, 2009).

The Court denied Plaintiff’s Motion for Summary Judgment and held (Doc. 56 “Memorandum, Opinion and Order”, p. 2) (on PACER.GOV):

“Midland [Funding LLC] and MCM violated the FDCPA, 15 U.S.C. § 1692a ... and Ohio Consumer Sales Protection Act, Ohio Rev. Code Ann. § 1345 ... by using a form affidavit that falsely claimed to be based on the affiant personal knowledge in an attempt to collect debt from Defendant

The mentioned above U.S. District Court for N. District of Ohio Western Division found (from the testimony of one MCM’s affiants, Doc. 50, pp. 8-13) that MCM receives and fulfills between 200 and 400 attorneys’ requests for Affidavits per a day. Approximately ten “legal spe******ts” take stacks of such Affidavits from printers, sign them without oath administered and send them by internal mail to the MCM’s Notary. These “Legal Spe******ts” have ability to check the accuracy of the information on the Affidavit via MCM’s computer system and they do it, but the percentage of those that are checked for accuracy is “very few and far between (Doc. 50, p. 9)”.

Finally this U. S. District Court held (Doc. 50, p. 15):

“ ... the affidavit was false, deceptive, and misleading in its use in conjunction with an attempt to collect a debt, and Midland [Funding LLC] and MCM have violated FDCPA § 1692e”.

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"My" Affiant Susan R. has deleted her profile from Linkedin.com.

@rjejw

Ashley H. is supposed to testify on my trial.

Midland Credit Management, Inc. v. Brent, 3:08cv1434, 2009 U.S. Dist. LEXIS 70650, 2009 WL 2437243 (N.D. Ohio Aug. 11, 2009).

The Court found (from the testimony of one MCM’s affiants, Doc. 50, pp. 8-13) that MCM receives and fulfills between 200 and 400 attorneys’ requests for Affidavits per a day. Approximately ten “legal spe******ts” take stacks of such Affidavits from printers, sign them without oath administered and send them by internal mail to the MCM’s Notary. These “Legal Spe******ts” have ability to check the accuracy of the information on the Affidavit via MCM’s computer system and they do it, but the percentage of those that are checked for accuracy is “very few and far between (Doc. 50, p. 9)”.

Ashley H, WOULD THAT E ASHLEY hOFFMAN THAT FILED THE SUIT AGAINST ME.

Her affidavit was notarized by Ashley H. It occurs to me wouldn't it be interesting if these legal spe******ts notarized each other's affidavits?

OF COURSE, that might be HER JOB and since it is if she doesn't back you up she's out on her ear so yeah, very objective.

In my case its interesting because she states she as access to "pertinent account records for Midland Credit Management, Inc. (MCM)

In my case, Carina B's statement that she has "access to pertinent account records of Midland Credit Managment, Inc. (MCM)" is misleading it seems to me. She never states that she is employed by this group. Furthermore, in my case I am being sued by Midland Funding LLC and so why are we admitting "evidence" from Midland Credit Management? Midland Credit Management is not a party to the case nor is Citibank from whence the charges came. If they can't prove that Citibank sold them this debt then they have no case. Which is where we were when I got STUNNED by an overeager judge (overeager being a generous term on my part) and plaintiff's attorney.

Each of her tasks at work basically amounts to the same thing. She spends her day filling in the blanks for whatever bit of "proof" they are wanting at the time.

This is from your affidavit :

Managing the evaluation of the documents, proof reading, ensuring accuracy and completeness

of documentation, as well as escalation and resolution of non-conforming docurments (sic !!) to quickley (sic !!) resolve discrepancies.

Affidavit Types: Default Judgment, Motion for Summary Judgement, Affidavit of Lost Instrument, Affidavit of Indebtedness, Affidavit in Lieu of Testimony, Chain of Title Affidavit

Notary Public

In both cases (yours and mine) these spe******ts are relatively new having come onboard 2009 (I bet they don't last long).

And your person says part of her job is proof reading (not proofreading) and she has numerous errors in spelling so I guess she isn't too good at her job.

Edited by GDayMateAZ

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I haven't filed disclosure or interrogatories yet but need to. Plaintiff's attorney filed an application of default and requested I filed a responsive pleading in 15 days. is date of mailing, date of postmark if different from date on lawyer's filed mailing. Attorney filed Application and Affidavit of Default, Notice of Intent to Seek Entry of Default, Entry of Default, Would this be defenses and MTS or MTD? Should I use as Defense what the attorney said; they have no additional and should I ask for any evidence the witness for plaintiff is gonna testify to? thanks for your help, any and all that enables me to defend my wife and I. Since the attorney is not providing an affidavit up front or if what he is gonna testify to is the affidavit included is he trying to scare the defense and also violating rules of fairness? Help? I hope the smell is a rat. PRO SE

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The disclosure statement says the undersigned party, persuant to Rule 26.1(B) (1), ARRCP discloses the following and certifies the disc includes all information in his possession, custody and control as well any info that can be determined, learned or obtained by reasonable investigation.

He didn't claim breach of contract until disclosure as well. in complaint he claimed default, being owed, mentioned contract, but no mention of breach, just failure to pay, failed and refused to pay, plus lawyer fees, interest, . Is this ok or will be included in defenses. He can't strike defenses, right? no court date yet and mentions hearing maybe.

affiant claims how records are maintained by MCM but not OC. it said a person with knowledge of the act or event or a person with knowledge to transmit. it mentions records or data compilation but now reference to any. It says legal Spe******t has access to pertinent account records. She lists a card number and a Chase creditor, but not OC.

She does say Plaintiff is the current owner of, successor to, the obligation sued on and was assigned all rights, title and interest to defendant's Chase Account CC number and MCM number. Assigned to collect is different than owning. How do they get by with this? Doesn't the judge having any common sense responsibilities?

Where do I get Cases used to support defenses or pleas? Can we trust most cases used in actual litigation cases and decisons. I would like to read some of them but don't have much money. A struggling disabled Veteran PRO SE

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I have not filed disclosure yet. Should I ask for MTD or MTS. Or just file my additional defenses and include attorney's disclosure statement. But sounds like they want to use witness to verify debt without providing copies of contract or assignment. How can they sue as entitled to same monies as OC when they are masquerading as being assigned when they actually purchased the alleged debt. I'm a newbie but catching on fast. Attorney even filed an application for default after my answer, I guess claiming I didn't answer. Isn't this wrong as well to file an app for default when I know he had my Answer because he originally referenced me as John Doe and husband, but had my wife's name correct?

Will a MTD in Arizona where attorney has stated they have no new evidence but the witness. Is he bluffing about this and we won't know unless he brings out more evidence. Can't I get what the witness is gonna testify to and any records he might use ahead of time. newbie PRO SE

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