GDayMateAZ

Midland Funding vs. me in Arizona 2010

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Why would plaintiff say they mailed everything 2 days earlier than postmark?

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@RebelLady,

I downloaded this case from Pacer.

This settlement must be approved by Court in January 2011.

So, I cannot quote it.

Anyway, thanks a lot !!!

Have you ever heard of Roman v Midland Credit Funding?

Its a real recent (just in the last couple of months) class action suit that is being settled out of court. It appears that some 20-some thousand people in Illinois and Indiana were sued by MCM (Encore) and presented with affidavits from an employee of Midland that contained false information. Midland has agreed to pay 200-some thousand dollars in restitution to the Plaintiffs in the class action suit rather than go through the cost of litigation (and although Midland has denied any wrong-doing, this sounds like an admission to me...IMHO).

RL

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There should be plenty of others out there. It seems like just recently they got in big trouble in Ohio on account of their affidavits. During the fall of last year, they were issued a Cease and Desist Order from the entire state of Maryland. I had a copy of the C&D but can't find it right now :(

RL

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GDayMateAZ and RebelLady, I have the same affiant as GdayMateAZ, Susan R.., on my summons I have the same comapny as the Roman v Midland Credit Funding, I going to court on Friday, I sent their attory a request of VOD and also a motion to strike affidavit base on hearsay (I'm in Illinois) will see what happens

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Why can't we request this motion because they failed to let defendants review the business records or what ever evidence they claim is protect by FCRP 803 and 902. 902 states defendant must be given opportunity to review said evidence prior to submitting it as evidence. I still don't see how an affidavit's claim unless backed up by assignment document and business records can be allowed in as evidence. did you use the cases cited in your motion to strike?

I need to know if I should file a motion for summary since plaintiff's attorney has said he has no more evidence, hasn't proved he has an assignment or that he even owns the account. only an affidavit stating how well Midland and MCM keep records and how qualified C. Schaefer is has been submitted. Plaintiff plans to bring to court a legal spe******t in(supposedly) from Midland or MCM, can't I impeach the witness if he isn't gonna bring records or something I haven't seen to court to prove their case? Attorney says he has no more evidence, so is the witness allowed to enter any? Is a summary judgment motion proper now or do I have to go thru disclosure yet. I have nothing to help this prove a case against me.

The only evidence besides an affidavit is a copy of an agreement from OC with no identification on it except it is a date of 1990 of when the Agreement must have been created. It is a very poor copy with parts of the agreement no even legible or missing(not copied). I should be able to strike and ask for summary, right? Any ideas or examples of summary would be appreciated. Attorney has even serve me and court with motion for default, even though I submitted an answer. I am amending my defenses under the 21 day amendment rule. Still have about 25 days before I have to disclose under the 40 day rule. . running late, newbie, first defense in court. Learning but attorney is depending on the affidavit to prove assignment of the account without providing anything else besides a general purpose OC rules of agreement minus the app. The affidavit is from by C. Shaefer, can't find anything about her, will in disclosure i hope. MCM and they haven't even proved how they got that from them, Midland that is. Why don't they have to prove that OC had something to do with this? I need to prove my defenses, the usual ones. I do want to use rule 902 to strike the evidence with the other usual reasons. I need a good MTS. But I don't see how they get around Rule 902 (11). Aren't their several AZ cases out there where the proof of assignment or contract or bill of sale or something must be included in the evidence submitted b4 court. How can an affidavit be used for proof of assignment and contract or bill of sale?

Does anyone have proof MCM or Midland Funding is being sued for false affidavits or settled cases where a false affidavit was used. Would be nice to have one on any of Midland's legal Spe******ts. Please lead me to them. helpinAZ!

Edited by helpinAZ
error

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somebody posted that Midland Funding LLc is not a licensed collection Agency in AZ. But is Midland credit Management? Any help appeciated. helpinAZ

Edited by helpinAZ
erroe

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@HelpinAZ,

1. MCM is CA and they are licensed as CA with AZ Dept of Financial Institutions AZDFI.GOV;

2. Midland Funding LLC is registered with Arizona Corporation Commission since December 2009, and stated

its business as "The Company Purchases and Holds Portfolios of Defaulted Consumer Debt and Places the Accounts with Servicers for Collection of the Debt".

MCM is Midland's Servicer.

somebody posted that Midland Funding LLc is not a licensed collection Agency in AZ. But is Midland credit Management? Any help appeciated. helpinAZ
Edited by GDayMateAZ

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@RebelLady,

I have this file - thank you.

You can find it just googling

Maryland Midland Funding

http://www.dllr.maryland.gov/finance/consumers/pdf/midlandsettlement.pdf

There should be plenty of others out there. It seems like just recently they got in big trouble in Ohio on account of their affidavits. During the fall of last year, they were issued a Cease and Desist Order from the entire state of Maryland. I had a copy of the C&D but can't find it right now :(

RL

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I went to pacer and couldn't find it. can you email me a copy and any other case that will help. being sued my Midland in AZ. Legal Spe******t is Cynthia Schaefer. Couldn't find her online. please help. neebie thanks.

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@helpinAZ

You cannot find all of these Spe******ts online.

"My" Affiant deleted her online profile.

I did not find any successful Midland Case in AZ on Pacer.

There was one

Midland Funding LLC v. Medley 2009 in Pinal County

2:09-cv-02621 2009

These guys tried use the fact that Midland Funding LLC is not licensed in AZ

as CA, however this stuff did not work.

Somehow Medley dismissed this case later.

There were two Class Acction cases in IL:

1) Thornton v. MCM 1:09-cv-05685 and

2) Roman v. MCM 1:09-cv-05872

They were combined to to one

Roman v. MCM 1:09-cv-05685, after Thornton passed away.

This Class Action Settlement must be approved by U.S. Disctrict Judge in

Jan 2011.

Another Landmark case:

Midland Funding LLC v. Brent in Ohio

3:08-cv-01434 in 2009.

Judge said in his Official Opinion that Midland supplied patently false

affidavits.

The FREE links to these opinions are:

http://creditfactors.com/pro/course/images/9-23-09-memorandum-affirming-injunction-pub.pdf

http://creditfactors.com/pro/course/images/8-11-09-opinion-midland-false-affidavit-pub.pdf

But these PDF files have inside a Watermark "CreditFactors.Com"

I have a big bunch of Pacer files on my PC.

Could sent to you. PM me your e-mail.

I went to pacer and couldn't find it. can you email me a copy and any other case that will help. being sued my Midland in AZ. Legal Spe******t is Cynthia Schaefer. Couldn't find her online. please help. neebie thanks.

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A.R.S. § 32-1056 “Violation; classification”:

A. A person operating a collection agency without a license shall be

guilty of a class 1 misdemeanor.

MOTION TO DISMISS

COME NOW Defendants, appearing PRO SE, and hereby request that this Court Dismiss this Plaintiff’s Complaint in its entirety and WITH PREJUDICE because the Plaintiff Midland Funding LLC operates with NO Legal Authority to transact Debt Collection business activity as Collection Agency in the State of Arizona including bringing Debt Collection related Litigations in this State Courts under A.R.S. §§ 32-1055(A), 32-1021(A), 32-1056(A) and 32-1057(A).

MEMORANDUM OF POINTS AND AUTHORITIES.

1. The Plaintiff “Midland Funding LLC” is registered with Arizona Corporate Commission under name “Midland Funding DE LLC” (License Number R-1565213-0) as Foreign LLC with Domicile in the State of Delaware (Exhibit 1 – Arizona Corporation Commission Public Record – Midland Funding LLC).

2. The Plaintiff’s Main Address is 8875 Aero Drive Suite 200 San Diego, California, 92123. Their Statutory Agent in Arizona is located at 2338 West Royal Palm Road, Suite “J”, Phoenix, Arizona, 85021 (Exhibit 1 – Arizona Corporation Commission Public Record – Midland Funding LLC).

3. The Plaintiff calls itself “Portfolio Savings” Company, while its actual business is Consumer Debt Buying and Debt Collecting. This Company is actual Debt Collector, as it defined in A.R.S. § 32-1001(2) and by the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692a(6).

4. Under A.R.S. § 32-1055(A): “It is unlawful for a person to conduct a collection agency in this state without having first applied for and obtained a license…”.

5. A.R.S. § 32-1021(A) states that any Collection Agency desiring to conduct Debt Collection business must apply for license with Arizona Department of Financial Institutions.

6.A.R.S. § 32-1056 “Violation; classification” states:

A. A person operating a collection agency without a license shall be

guilty of a class 1 misdemeanor.

7. A.R.S § 32-1057 “Prosecution of violations; individual liability” states:

A. The prosecuting officer of a county or city shall prosecute

all violations of this chapter occurring within his jurisdiction.

8. At the time of filing this Complaint and up today, “Midland Funding LLC” or “Midland Funding DE LLC” has NOT been licensed as Collection Agency in this State (Exhibit 2 – Arizona Department of Financial Institutions Licensed Collection Agencies List showing the absence of both Midland Funding LLC and Midland Funding DE LLC), and therefore its Debt Collection activity including bringing Legal Litigations in the State Courts is ILLEGAL in Arizona.

9. As such said, the Plaintiff “Midland Funding LLC” has NO Legal Standing in Arizona to bring this Legal Action in this Court against Defendants.

10. Bringing this action against Defendants without Licensed as Debt Collector, Plaintiff failed to comply with statutory laws in the State of Arizona.

11. The Plaintiff and its Attorney must be held responsible pursuant A.R.S. §§ 32-1056(A) and 32-1057(A) for violation of A.R.S. §§ 32-1055(A) and 32-1021(A).

WHEREFORE, Defendants respectfully request that this Court Deny this Plaintiff’s Complaint and Dismiss it WITH PREJUDICE as filed ILLEGALLY in this State.

Attachments: Exhibit 1 – Arizona Corporation Commission Public Record for

Midland Funding DE LLC;

http://starpas.azcc.gov/scripts/cgiip.exe/WService=wsbroker1/names-detail.p?name-id=R15652130&type=FOREIGN%20L.L.C.

Exhibit 2 - Arizona Department of Financial Institutions Licensed

Collection Agencies List showing the absence

of both Midland Funding LLC and Midland Funding DE LLC;

http://azdfi.gov/Lists/CA_List.HTML

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

This Motion was denied by Judge in Nov 2010.

Edited by GDayMateAZ

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I got this information for the AzDFI under Collection Agencies:

Midland Credit Management, Inc.

4302 E. Broadway Road

Phoenix, AZ 85040

(800) 265-8825

home office #0905285

I believe, although I'm not from AZ, that the home office # is there registration number in AZ to conduct business...

RL

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@RebelLady,

There is a common confusion with Midland (and other XXXX like LVNV)

sisters.

My Plaintiff's name is precisely "Midland Funding LLC",

and not "Midland Credit Management, Inc."

Yes, MCM is registered with AZDFI.GOV as CA,

but MCM is not suing me, it's "Midland Funding LLC" the one.

I just checked with my Justice Court's Docket's history search.

It shows that MCM-filed litigations ending by 2009.

Since 2010, only fake Midland Funding LLC is the Plaintiff.

So, now it looks like:

If MCM is out of luck, getting no penny,

and decides to bring lawsuit against a stubborn debtor,

it turns account over

to an Atty and this Atty submits litigation to State Court

in the fake name of "Midland Funding LLC".

Other XXXX sisters are working similar way, switching to

"XXXX Funding LLC" alias, like LVNV Funding.

These "XXXX Funding LLC" pretend to be a Financial Institutions,

so they are supposed to conduct CREDIT Business, FUNDING consumers.

Really, they are doing completely opposite TAKING back $$$ that they never GAVE.

SEC.GOV reports show no trace of funding activity of such "XXXX Funding LLC".

I got this information for the AzDFI under Collection Agencies:

Midland Credit Management, Inc.

4302 E. Broadway Road

Phoenix, AZ 85040

(800) 265-8825

home office #0905285

I believe, although I'm not from AZ, that the home office # is there registration number in AZ to conduct business...

RL

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"I don't think you have a valid affirmative case, although Midland Funding may be unable to prove a case or title to the debt. The only case in point holds that the Arizona Collection Agency Act does not apply to a debt buyer, and I think it is correct. Illinois has a very similar statute and it had to be amended to cover debt buyers."

Daniel A. Edelman

EDELMAN, COMBS, LATTURNER & GOODWIN, LLC

Edited by GDayMateAZ

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14 Fla. L. Weekly Supp. 975b

Contracts -- Standing -- Assignment --

Where records custodian testified that she knew account

sued on was owned by plaintiff

only because of information stored in computer

and failed to supply any supporting documentation,

and bill of sale and

assignment presented by plaintiff fails to sufficiently

identify defendant's account as one of accounts assigned or

sold to plaintiff by bank,

plaintiff is unable to prove it has standing to bring action

UNIFUND CCR PARTNERS, assignee of FIRST USA BANK, Plaintiff, v.

DONNA CAVENDER, Defendant.

County Court,

9th Judicial Circuit in and for Orange County.

Case No. 2007-CC-3040, Division 73.

July 20, 2007.

Deb S. Blechman, Judge.

Counsel: Gary Lublin, for Plaintiff.

Dennis Chen, ChenLaw, PA, Ocoee, for Defendant.

FINAL JUDGMENT FOR THE DEFENDANT

This cause came on to be heard at Trial in open Court on June 7, 2007.

In attendance were the Plaintiff (by telephone), the Defendant,

attorney Gary Lublin for the Plaintiff, and attorney Dennis Chen for the Defendant.

The Court having heard from counsel for the parties, examined the Court file,

and having received testimony, makes the following:

FINDINGS OF FACT:

1. Plaintiff filed an Amended Complaint on January 5, 2007 and, as a result, this matter was transferred from the circuit court to

this Court by Order on March 1, 2007.

2. Defendant filed an Answer to the Amended Complaint on February 20, 2007.

3. On March 27, 2007, after a hearing in which amended pleadings were authorized, Defendant filed Amended Answer and

Affirmative Defenses, Motion to Compel Discovery, and Second Request for Production. Defendant's Affirmative Defenses

raised the defenses of a) standing, B) failure to attach a copy of the contract sued upon, and c) statute of limitations.

4. The Court decided, in a hearing on April 2, 2007, that a trial date would be scheduled and that all documents to be used at trial

were to be served on opposing counsel no less than thirty days prior to trial or be subject to exclusion.

5. Plaintiff filed two documents in support of their claim on April 16, 2007:

i. Bill of Sale, and

ii. Assignment.

6. Defendant filed a Motion to Amend the Amended Answer and Affirmative Defenses (Amended Answer) and to substitute with

Second Amended Answer and Affirmative Defenses (Second Answer) on May 8, 2007. The Second Answer is identical to the

Amended Answer with the exception that the Second Answer includes a claim for taxable costs to include attorney's fees.

7. A hearing was held on June 4, 2007, in which the Court reserved jurisdiction over the attorney's fees issue until after the trial

scheduled for June 7, 2007. The Court also offered to continue the trial to a later date but both parties refused the offer.

8. Chris Bryan, records custodian for Plaintiff, testified on behalf of the plaintiff and admitted that there were relevant documents

regarding account ownership that the Plaintiff had failed to file with the Court. She stated that she knows the account is owned

by the plaintiff only because of information stored in their computer system. She did not have any supporting documents before her.

CONCLUSIONS OF LAW:

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.

ORDERED and ADJUDGED:

That the Plaintiff, Unifund CCR Partners, shall take nothing from the Defendant, Donna Cavender.

* * *

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Gday,

Did they give you a reason for denying your Motion to Strike?

Did you site caselaw on the Motion?

Our rules state "Not later then 14 days before the date of the non-oral hearing, the opposing party shall file with the court and cause to be served upon the moving party opposing affidavits, depositions, exhibits and documentation AND a momorandum of authorities opposing the motion"

"Motions not supported by a memorandum of authorities may be stricken from the motion hearing calendar."

So I'm filing my Motion to Strike and in it am including supporting caselaw & state codes.

I also have to file an opposition to Plaintiff's motion for SJ.

Been looking online for actual midland cases in my state to see if I can find the format. Hopefully adding the caselaw in my Motion to Strike is the right way to do this.

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Encore Capital Group

... and its subsidiary, Midland Credit Management, Inc.

8875 Aero Drive, Suite 200

San Diego, CA 92123

Tel: (800) 825-8131 • Fax: (800) 309-6998

Via electronic delivery

July 31, 2009

Federal Trade Commission

Office of the Secretary

Room H-135 (Annex A)

600 Pennsylvania Avenue, N. W.

Washington, DC 20580

Re: Debt Collection Roundtable -Comment, Project No. P094806

Dear Federal Trade Commission:

Thank you for the opportunity to provide written comments in advance of the roundtable discussion regarding "Protecting Consumers in Debt Collection Litigation and Arbitration", scheduled for Chicago on August 5-6, 2009.

Our companies,

Encore Capital Group, Inc. (NASDAQ: ECPG),

Midland Credit Management, Inc. ("MCM"),

and three debt-buying entities,

Midland Funding LLC,

Midland Funding NCC-2 Corporation and

MRC Receivables Corporation ...

We employ more than 1200 employees across five locations,

We have been in the collection business for 55 years and started purchasing portfolios for our own account approximately 18 years ago.

From our inception through June 30, 2009, we have invested approximately $1.3 billion to acquire 27 million consumer accounts

with a face value of approxilnately $43 billion.

The receivable portfolios we purchase consist primarily of unsecured, charged-off domestic consumer credit card, auto loan deficiency and telecom receivables purchased from national financial institutions, major retail credit corporations, telecom companies and resellers of such portfolios.

After we purchase a portfolio, we continuously refine our analysis of the accounts to determine the best strategy for collection, including the use of a nationwide network of collection attorneys to pursue legal action where appropriate. We believe the use of the legal system is a necessary element of maintaining accountability in our financial system when repayment cannot be secured through the mail or by phone.

Default Judgments and Service of Process

The processes by which any judgments, including default judgments, are entered across various jurisdictions differ greatly based upon such considerations as the amount of the debt, the documentation provided with the complaint, and the sufficiency of evidence regarding the proper service of process upon the defendant. Default judgments represent a significant percentage of the judgments obtained by our companies and others in this industry, as well as in all other cases filed in coulis that must review and resolve increasingly large numbers of lawsuits. In our view, the rate of default judgments does not depend on the type of action but rather on the processes in place for a particular court or judge to make a decision in a case where the defendant has failed to file an appearance or responsive pleading, and has similarly failed to physically appear before the court. We would prefer that consumers appear so that we may discuss the account, their financial situation, and payment options, but they do not go to court, and that is the reason for the large numbers of default judgments.

While the number of cases filed to collect delinquent debts is substantial, we do not see the default judgment rate to be a reflection of certain types of debt or debt ownership, but as an indication that most defendants fail to respond to proper legal notice of a pending court action involving their interests. A reasonable default judgment process that examines both the service of process and the information and materials supporting the complaint is able to quickly resolve uncontested lnatters and remove them from a crowded court docket while limiting the time that local counsel must devote to such cases. In most jurisdictions, a defendant is notified of such a default judgment and provided another opportunity to appear before the court and raise available defenses to the claim. We believe that defendants are given sufficient opportunities, both before and during the litigation process, to raise defenses, ask questions, and reach a resolution to their delinquent account, and the default judgment process is important for companies such as ours to continue to collect debts in an efficient and costeffective manner.

Statute of Limitations

A statute of limitations, which provides a deadline for the commencement of litigation, is defined is various ways across many states, with distinctions based on the nature of a contract, availability of supporting documentation, location of activity, and other factors that are reviewed and applied by courts at different jurisdictional levels. Our company uses litigation as only one of several methods to collect debts and, for those accounts that are past the statute of limitations, we do collect on such accounts through methods such as telephone calls and letters because there is no prohibition on such actions. We do not, however, knowingly pursue litigation against those consumers whose statute has expired. As you know, the FTC issued a Consumer Alert in October 2004 that specifically concluded that collection of debt for which a statute of limitations has run is not deceptive, misleading, or prohibited by law. With only a few exceptions, the expiration of the statute of limitations does not extinguish the debt or our right to continue collections, and we do collect such debts in the same general course of business that we collect all other debts.

Through court decisions, the statute of limitations for credit card accounts has been reduced in several states, and a number of state legislatures have also proposed a reduction in the time period for litigation. It is our view that shorter statutes will not have the intended effect and will lead to a significant increase in the number of lawsuits filed. Companies will be compelled to file lawsuits earlier in the collection process to protect their interests, and will no longer have the time and flexibility to work with consumers having financial difficulties. While shorter statutes may initially appear to be favorable for consumers, the result will likely not be beneficial to them because agencies will no longer be able to wait for individuals to financially recover. Additionally, the litigation costs and court activity will only add to the burden faced by such consumers.

Finally, consumers are currently provided with detailed information about their debt and numerous notices regarding their rights, and it is our view that informing consumers about the legal status of their account is problematic. Consumers receive a validation letter each time that an account is transferred to a new servicer, and consumers have also already likely received many letters and notices from the original creditor and prior owners and servicers, so we believe that sufficient disclosures have been made to consumers and that requiring an additional notice will result in legal questions and other issues that collection agencies should not be required to address. Letters to consumers should be concise, informative and provide details regarding the subject account and payment options, but should not be complicated with legal advice related to the statute of limitations, tax consequences, or other similar issues, which will complicate letters and make them less effective and more difficult for consumers to read and understand.

Evidence of Indebtedness

As noted previously, our company purchases account portfolios from national financial institutions, major retail credit corporations, and telecom companies, as well as resellers of such portfolios, and each purchase is the subject of a comprehensive written agreement that addresses all aspects of the transaction between our company and the selling entity. Our agreements not only require representations and warranties from a seller that all consumer and account information is accurate and current, but also often provide for post-purchase support from sellers regarding additional information or documents that may be needed to address consumer or court inquiries. The electronic data obtained from sellers includes a consumer's name, address, Social Security Number, telephone number and other details that are used to confirm identity, as well as specific account information regarding the charge-off and current balance, last payment date and amount, and other account activity. All of this is provided to our law firms at the time we place an account for litigation. We intend and expect that all relevant and required information is referenced in the complaint or provided to the court and the consumer in the form of an affidavit or other exhibit.

One major concern for our company and the industry has been the elevated evidentiary standards being proposed by state legislatures and independently developed by local courts. The standards appear to be applicable only to debt collection cases and often include documentation and information requirements that are burdensome and unrealistic in a time when such physical materials are often unavailable or non-existent. Many accounts are opened, accessed, managed and transferred without any hardcopy documents, so an evidentiary standard that sets minimum filing or judgment requirements that demand the production of an original application, complete set of account statements, copies of payments and other written materials is, in our opinion, an unreasonable expectation. The burden of proof should not be higher for debt collection matters, and we meet our burden of proof using electronic information and certain documents provided to us by the sellers and warranted by contract to be true and correct.

Lance S. Martin

Vice President, Compliance and Regulatory Affairs

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@indigoesagain

No, they did not give me any reason of denial.

My MTS did not include "Memo of Authorities"

and I did not cite anything except of "Hearsay Rules"

(from AZ Rules of Evidence)

:(

because that time ( September 2010) I was not so

knowledgeable

as I'm now (thanks to all guys/gals from this Board).

"Hearsay Rules" alone did not work, as I expected.

Gday,

Did they give you a reason for denying your Motion to Strike?

Did you site caselaw on the Motion?

Our rules state "Not later then 14 days before the date of the non-oral hearing, the opposing party shall file with the court and cause to be served upon the moving party opposing affidavits, depositions, exhibits and documentation AND a momorandum of authorities opposing the motion"

"Motions not supported by a memorandum of authorities may be stricken from the motion hearing calendar."

So I'm filing my Motion to Strike and in it am including supporting caselaw & state codes.

I also have to file an opposition to Plaintiff's motion for SJ.

Been looking online for actual midland cases in my state to see if I can find the format. Hopefully adding the caselaw in my Motion to Strike is the right way to do this.

Edited by GDayMateAZ

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Defendants, appearing PRO SE, respond to Plaintiff’s Objections to their First Motion to Dismiss the Plaintiff’s Complaint:

MEMORANDUM OF POINTS AND AUTHORITIES.

1. The Plaintiff “Midland Funding LLC” (herafter “MF LLC”) is one of multiple wholly-owned subsidiaries of “Encore Capital Group, Inc” (hereafter “Encore”), publicly traded U.S. company (NASDAQ: ECPG) which describes itself (in Form “10-K” for 2009 filed with U.S. Security and Exchange Commission, hereafter “SEC”) as:

a) “..a systems-driven purchaser and manager of charged-off consumer receivable portfolios…”, acquiring them “.. at deep discounts from their face values..” and participating “in auction-style purchase processes ..” ;

B) employing “.. a dynamic mix of collection strategies to maximize our return on investment…” including “...the use of a nationwide network of collection attorneys to pursue legal action where appropriate”;

c) being in the collection business for over 50 years.

2. As such said, the sole business of Encore and all its wholly-owned subsidiaries (including the Plaintiff MF LLC) is a direct or indirect collection activity.

3. In “Our Strength” part of the cited above Form “10-K” Encore states:

“Account-Based Portfolio Valuation.

We analyze each account within a portfolio presented to us for purchase to determine the likelihood and expected amount of payment…”.

4. In “Acquisition of Receivables “ Encore further states:

“Typically, receivable portfolios are offered for sale through a general auction, “forward flow” contract or direct negotiation…. Once a portfolio of interest is identified, our internal modeling team analyzes individual account level information provided by the seller and, if appropriate, other external sources, in order to determine the expected value of each potential new consumer.

Our collections expectations are based on demographic data, account characteristics, and economic variables, which we use to predict a consumer’s willingness and ability to repay their debt….. As in the past, we continue to base our purchasing decisions on a combination of empirical data, proprietary statistical models, and deep industry knowledge, and will remain focused on making purchasing decisions based on sound quantitative and qualitative analysis. “

5. Based on the information from Encore’s Form “10-K”, the whole purchasing business of its wholly-owned subsidiary MF LLC has a sole purpose of further collection and covered by A.R.S § 32-1001(2) (A) words “….soliciting claims for collection…”.

6. In Loesch v. Bartholomew, 5 Cal. App. 4th Supp. 8 - Cal: Court of Appeals 1992, the Court of Appeals of California (San Francisco, Docket 4580, March 3, 1992) held:

“As to whether "soliciting claims for collections" is equivalent to bidding at an auction, this appellate department finds that the bidding for and purchase of 578 delinquent credit card accounts constitutes a solicitation of claims for collection.”

"`Solicit' according to Webster's Dictionary is `to aply to for obtaining something; to wake or excite to action; to arouse a desire in, ...'" (Id. at p. 798.) Black's Law Dictionary defines "solicit" as "to ask for the purpose of receiving," and provides that "though the word implies a serious request, it requires no particular degree of ... supplication." (Black's Law Dict. (5th ed. 1979) p. 1248, col. 2.)

“In the context of an auction, the bidders are offerors. (Estate of Lynch (1923) 62 Cal. App. 687, 690 [217 P. 807].) While a bidder may withdraw or revoke a bid prior to the auctioneer's announcement of a completed sale, this does not vitiate the act of trying to obtain or requesting the 578 credit card accounts.”

7. Encore’s Form “10-K” provides this information in the “Legal Proceedings” part:

On September 16, 2009, the Maryland State Agency Licensing Board in the Office of the Commissioner of Financial Regulation (the “Agency”), issued a cease and desist order barring all collection activities by us and certain of our affiliates, alleging that we had failed to obtain necessary business licenses and had improperly filed lawsuits to collect credit card accounts, among other claims raised in certain of the legal actions pending against us. Pursuant to an Interim Settlement Agreement we executed with the Agency on September 23, 2009, and a Settlement Agreement we executed with the Agency on December 17, 2009, certain of our affiliates agreed to refrain from collection activities in Maryland until obtaining licenses. Under the terms of the Settlement Agreement, we resolved all of the allegations raised by the Agency without any admission of liability. The Agency agreed to a final resolution of the matter without an administrative hearing, in exchange for an agreement from Midland Credit Management, Inc. and three other affiliates to pay aggregate civil penalties of approximately $1.0 million, to obtain licenses for three of our affiliates from the Agency, and to make certain other changes in business practices. The companies in question are compliant with the agreement, have since obtained licenses and have resumed doing business in Maryland.

8. “Three other affiliates” included “Midland Funding LLC” that became licensed now in the State of Maryland as Collection Agency since January 15, 2010 with License No. 5479.

9. Therefore, Defendants are submitting this response in support their opinion that “Midland Funding LLC” is deeply involved to unlicensed collection activity in this State, and respectfully request this Court to grant their Motion to Dismiss.

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Both Plaintiff's Atty Motions are denied by Judge.

Recent developments the last 2 weeks.

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

I'm writing my response now.

2. Atty asked Court to allow him to attend the Pre-Trial Conf (12/02/2010) by phone, without driving 100 miles.

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My Motion to Dismiss

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1080058&postcount=62

is denied and this response to Plaintiff's Atty Opposition is completely ignored.

Defendants, appearing PRO SE, respond to Plaintiff’s Objections to their First Motion to Dismiss the Plaintiff’s Complaint:

MEMORANDUM OF POINTS AND AUTHORITIES.

1. The Plaintiff “Midland Funding LLC” (herafter “MF LLC”) is one of multiple wholly-owned subsidiaries of “Encore Capital Group, Inc” (hereafter “Encore”), publicly traded U.S. company (NASDAQ: ECPG) which describes itself (in Form “10-K” for 2009 filed with U.S. Security and Exchange Commission, hereafter “SEC”) as:

a) “..a systems-driven purchaser and manager of charged-off consumer receivable portfolios…”, acquiring them “.. at deep discounts from their face values..” and participating “in auction-style purchase processes ..” ;

B) employing “.. a dynamic mix of collection strategies to maximize our return on investment…” including “...the use of a nationwide network of collection attorneys to pursue legal action where appropriate”;

c) being in the collection business for over 50 years.

2. As such said, the sole business of Encore and all its wholly-owned subsidiaries (including the Plaintiff MF LLC) is a direct or indirect collection activity.

3. In “Our Strength” part of the cited above Form “10-K” Encore states:

“Account-Based Portfolio Valuation.

We analyze each account within a portfolio presented to us for purchase to determine the likelihood and expected amount of payment…”.

4. In “Acquisition of Receivables “ Encore further states:

“Typically, receivable portfolios are offered for sale through a general auction, “forward flow” contract or direct negotiation…. Once a portfolio of interest is identified, our internal modeling team analyzes individual account level information provided by the seller and, if appropriate, other external sources, in order to determine the expected value of each potential new consumer.

Our collections expectations are based on demographic data, account characteristics, and economic variables, which we use to predict a consumer’s willingness and ability to repay their debt….. As in the past, we continue to base our purchasing decisions on a combination of empirical data, proprietary statistical models, and deep industry knowledge, and will remain focused on making purchasing decisions based on sound quantitative and qualitative analysis. “

5. Based on the information from Encore’s Form “10-K”, the whole purchasing business of its wholly-owned subsidiary MF LLC has a sole purpose of further collection and covered by A.R.S § 32-1001(2) (A) words “….soliciting claims for collection…”.

6. In Loesch v. Bartholomew, 5 Cal. App. 4th Supp. 8 - Cal: Court of Appeals 1992, the Court of Appeals of California (San Francisco, Docket 4580, March 3, 1992) held:

“As to whether "soliciting claims for collections" is equivalent to bidding at an auction, this appellate department finds that the bidding for and purchase of 578 delinquent credit card accounts constitutes a solicitation of claims for collection.”

"`Solicit' according to Webster's Dictionary is `to aply to for obtaining something; to wake or excite to action; to arouse a desire in, ...'" (Id. at p. 798.) Black's Law Dictionary defines "solicit" as "to ask for the purpose of receiving," and provides that "though the word implies a serious request, it requires no particular degree of ... supplication." (Black's Law Dict. (5th ed. 1979) p. 1248, col. 2.)

“In the context of an auction, the bidders are offerors. (Estate of Lynch (1923) 62 Cal. App. 687, 690 [217 P. 807].) While a bidder may withdraw or revoke a bid prior to the auctioneer's announcement of a completed sale, this does not vitiate the act of trying to obtain or requesting the 578 credit card accounts.”

7. Encore’s Form “10-K” provides this information in the “Legal Proceedings” part:

On September 16, 2009, the Maryland State Agency Licensing Board in the Office of the Commissioner of Financial Regulation (the “Agency”), issued a cease and desist order barring all collection activities by us and certain of our affiliates, alleging that we had failed to obtain necessary business licenses and had improperly filed lawsuits to collect credit card accounts, among other claims raised in certain of the legal actions pending against us. Pursuant to an Interim Settlement Agreement we executed with the Agency on September 23, 2009, and a Settlement Agreement we executed with the Agency on December 17, 2009, certain of our affiliates agreed to refrain from collection activities in Maryland until obtaining licenses. Under the terms of the Settlement Agreement, we resolved all of the allegations raised by the Agency without any admission of liability. The Agency agreed to a final resolution of the matter without an administrative hearing, in exchange for an agreement from Midland Credit Management, Inc. and three other affiliates to pay aggregate civil penalties of approximately $1.0 million, to obtain licenses for three of our affiliates from the Agency, and to make certain other changes in business practices. The companies in question are compliant with the agreement, have since obtained licenses and have resumed doing business in Maryland.

8. “Three other affiliates” included “Midland Funding LLC” that became licensed now in the State of Maryland as Collection Agency since January 15, 2010 with License No. 5479.

9. Therefore, Defendants are submitting this response in support their opinion that “Midland Funding LLC” is deeply involved to unlicensed collection activity in this State, and respectfully request this Court to grant their Motion to Dismiss.

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So what happens now? I too am in Arizona and dealing with Midland. I am interested to see how your case pans out.

Good luck.

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Subject: Case Number xxxxxx - Discovery Request - First Good Faith Letter

From: Me

To: Atty's e-mail

Cc: Me

Mr. Atty,

This is a reminder, that I sent you the Request for Production of Documentation (Discovery Request)

that you received the next day.

In that Discovery, I requested for the next documentation:

1. Proof that the Plaintiff, Midland Funding LLC 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.

2. Original signed credit application between the Defendants and OC,

bearing signatures of both Defendants.

3. Proof that the Plaintiff acquired the alleged account from OC,

and such proof must include the alleged account number, both Defendants’ names, Social Security Numbers, Dates of Birth, the Defendants’ address,

Date of Sale and Amount of Sale in U.S. dollars.

4. Proof that the Plaintiff is the real successor-in-interest of the alleged debt.

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.

5. Proof that both Defendants have contractual responsibility to the Plaintiff

for the alleged debt, such as Contract(s) or agreement(s) in writing and signed

by both Defendants.

6. Proof of actual damages that the Plaintiff is seeking relief for.

The Plaintiff had 30 (thirty) days from receiving this request to produce all requested documentation.

As of today I did not receive anything of requested documentation.

All documents, attached as Exhibits A, B, C and D to the Plaintiff's Disclosure Statement are not satisfactory.

Please send me this documentation as soon as possible.

Sincerely,

Me

Case XXXXXX

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

Two weeks later sent him the second reminder with the same result (no-reply),

adding at the end:

" If you don't have anything else except of mentioned above Exhibits A,

B, C and D then please send to the Court and me an official

confirmation that Midland Funding has provided all available

documentation.

Under ARCP Rule 26.1(B)(2)

" A party seeking to use information which that party first disclosed

later than sixty (60) days before trial shall seek leave

of court to extend the time for disclosure as provided in Rule

37©(2) or ©(3)". "

I have already less than 60 days remaining before the trial.

Edited by GDayMateAZ
2 weeks later send the 2nd reminder with the same result

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