Proof I paid but they sold to Midland Funding anyway

[zendi]

Midland Funding bought this fake debt and filed in court.

They filed, I responded.

They did nothing for a year. Court set motion to dismiss. Midland replied with motion of Good Cause for continuing. Judge granted with court date.

Midland Filed for Telephonic hearing for final judgment as the court deems appropriate.. Judge granted 15 minutes.

I, having done nothing since my original response.

Now, This claim they are making is false. The debt was paid in full to the original creditor. Taken out in 2003 paid off Mid May 05. Midland bought this debt in 08 and filed against me in 09.

My help I need is what would you do from here with the documentation of proof and a court date approaching within days.

My hope is to ask the judge to allow my documents right then as proof to the false accusation against me. Have I screwed myself here ?

[FL4answer58]

You have "Proof (you) paid but they sold to Midland Funding anyway?

What did they file, that you responded?

They did nothing for a year. Court set motion to dismiss. Midland replied with motion of Good Cause for continuing. Judge granted with court date. Midland Filed for Telephonic hearing for final judgment as the court deems appropriate.. Judge granted 15 minutes.

Granted - Judgment against you?

'Done nothing since my original response'. Your response was your answer?

Now, they have filed a claim? But, the debt was paid in full to the original creditor. Who is the OC? Taken out in 2003 paid off Mid May 05.

Midland bought this debt in 08 and filed against me in 09.

What is the SOL on this claim not to mention you say you settled already on this debt - now they claim same settled debt?

You don't owe Midland anything, ....do you have additional info?

JDBs have history of attempting to collect on re-aged debt, debt they don't own and debt that has been settled or paid off.

__________________________________________________

Debt buyer American Acceptance filed a lawsuit alleging that a broker of

charged-off debts sold it debts to which it did not have title. American

Acceptance Co. v. Goldberg, No. 2:08-CV-9 JVB, 2008 U.S.Dist. LEXIS

39418 (N.D.Ind. May 14, 2008).

Another debt buyer, Hudson & Keyse, filed

suit alleging that the same debt broker obtained information about consumer

debts owned by Hudson & Keyse and used the information to try to collect

the debts for its own account, even though it did not own them. Hudson &

Keyse, LLC v. Goldberg & Associates, LLC, No. 9:2007cv81047 (S.D.Fla.

Nov. 5, 2007).

A similar suit, alleging that the broker resold accounts it did

not own, was filed by Old National Bank. Old National Bank v. Goldberg &

Associates, LLC, No. 9:2008cv80078 (S.D.Fla. Jan. 24, 2008).

The same debt broker is accused in another complaint of selling 6,521 accounts

totaling about $40 million face value which it did not own. RMB Holdings,

LLC v. Goldberg & Associates, LLC, No. 3:2007cv00406 (E.D.Tenn. Oct.

30, 2007).

On May 29, 2008, a decision was issued in favor of the plaintiff

in that case. RMB Holdings, LLC v. Goldberg & Associates, LLC, No. 3:07-

cv-406 (E.D.Tenn.). The decision finds that “RMB began making attempts

to collect the accounts it purchased from Goldberg” even though “Goldberg

never delivered title or ownership of the accounts to RMB.” Why was

RMB attempting to collect debts as to which it never received title?

There are reported cases in which debtors have been subjected to litigation

because they settled with A, and then B claimed to own the debt. Smith v.

Mallick, 514 F.3d 48 (D.C.Cir. 2008) (commercial debt purchased and

resold by debt buyer, debt buyer (possibly fraudulently) settles debt it no

longer owns, settlement held binding because notice of assignment not

given, but obligor subjected to litigation as result). See also Miller v.

Wolpoff & Abramson, LLP, No. 1:06-CV-207-TS, 2008 U.S.Dist. LEXIS

12283 (N.D.Ind. Feb. 19, 2008), in which a debtor complained he had been

sued twice on the same debt; Dornhecker v. Ameritech Corp., 99 F.Supp.2d

918, 923 (N.D.Ill. 2000), in which the debtor claimed he settled with one

agency and was then dunned by a second for the same debt; and Northwest

Diversified, Inc. v. Desai, 353 Ill.App.3d 378, 818 N.E.2d 753 (1st Dist.

2004), in which a commercial debtor paid the creditor only to be subjected

to a levy by a purported debt buyer.

In Wood v. M&J Recovery LLC, No. CV 05-5564, 2007 U.S.Dist. LEXIS

24157 (E.D.N.Y. Apr. 2, 2007), a debtor complained of multiple collection

efforts by various debt buyers and collectors on the same debt, and the

defendants asserted claims against one another disputing the ownership of

the portfolio involved. Shekinah alleged that it sold a portfolio to NLRS,

that NLRS was unable to pay, that the sale agreement was modified so that

NLRS would only obtain one fifth of the portfolio, and that the one fifth did

not include the plaintiff’s debt. Portfolio Partners claimed that it, and not

Shekinah, was the rightful owner of the portfolio.

In Associates Financial Services Co. v. Bowman, Heintz, Boscia & Vician,

P.C., IP 99-1725-C-M/S, 2001 U.S.Dist. LEXIS 7874 at **9 – 12 (Apr. 25,

2001), later opinion, No. IP 99-1725-C-M/S, 2004 U.S.Dist. LEXIS 6520

(S.D.Ind. Mar. 31, 2004), allegations were made that a creditor had

continued to collect accounts allegedly sold to a debt buyer.

In Capital Credit & Collection Service, Inc. v. Armani, 227 Ore. App. 574,

206 P.3d 1114 (2009), a debt collector was found to have settled a debt and

then instituted litigation on it.

Worldwide Asset Purchasing, L.L.C. v. Rent-A-Center East, Inc., 290 S.W.3d

554 (Tex. Ct. App. 2009). Debt buyers Worldwide, Atlantic Credit and NCO

sued creditor Rent-A-Center after paying $5 million for charged-off debts

and finding that “an overwhelmingly high percentage of the information on

the asset schedule was inaccurate or incomplete, including customer

information, references, social security numbers, inventory descriptions,

inventory status, account and sales balances, as well as whether the rental

agreements were valid.” The court held that because the creditor had sold

the debts “as is,” they had no right to complain.

Edited October 2, 2010 by FL4answer58

[zendi]

Thank You for responding.

Yes, I have the original statements from (OC)HouseHold Finance as to my making payment on the debt. All proof except 173.00 dollars of proof payments.

Yes, they sold the so called debt to Midland Funding.

Here is what the line says "Plaintiff Motion for Final Judgment on and award such other relief as the court deems just and appropriate by allowing Plaintiff's counsel to appear by by telephone."

My response was the original response. I have not filed for anything since my original " hey I got it" to the summons.

SOL..4 years I think in FL my last documented contact with HouseHold was May 05.

Midland Filed Jan 09 so They just barely hit the mark of SOL. So i did not attempt it.

There is zero attempt of Midland trying to collect this debt from me, although they had some girl from Midland sign a sworn oath to such attempts. (lie)

The original document they submitted as 'proof' was the check for 5,000 dated 2-17-03

The sworn oath from Midland Employee says #5) there was due and owing to Midland for the sum of 7,113.26.

Confusing. Hope these items helped you better understand. I don't understand how Midland continues day after day to get away with their antics.

[FL4answer58]

First - is this set for hearing? or this pretrial conferance - I cant tell from what your indicating - first appearance.

Also object to plaintiff appearance by telephone.

Submit an answer WITH a counter claim on FDCPA violation.

I think in this case - not only will you win but may collect from them.

[FL4answer58]

OK my bad I see:

“They did nothing for a year. Court set motion to dismiss. Midland replied with motion of Good Cause for continuing. Judge granted with court date. Midland Filed for Telephonic hearing for final judgment as the court deems appropriate.. Judge granted 15 minutes.”

Tell the judge you object to tele appearance - motion and set for hearing again. Explain to judge this will not take a mere 15 min. Tell judge it’s very presumptuous of the plaintiff to think that.

When is your next hearing?

They did nothing for a year – RCPs Florida auto dismiss – in 1 year.

They are attempting to stop it with motion of Good Cause for continuing.

What did they inidicate in this so called ‘good Cause motion”?

In Florida the court is not required to state 'findings or conclusions' when ruling on a motion but you can file notice requesting. You should have motioned to dismiss w/prej over the last year - but now you have to motion again for a SJ - the hearing will provide you the method to do this.

First lets amend those affirmative defenses to include a counter-claim and any other to set SJ like 'condition precedent' and 'lack of standing' etc.

Edited October 2, 2010 by FL4answer58

[zendi]

Court date is Mon. Motion for Final Summary Judgment. Therefore I don't know your answer except what I get out of the papers is;

"The lawyers will be on the phone while I plead my case and the judge will make the decision and they will agree to it." I don't think they care anymore, just hoping I don't show. But I'm going.

I'm sorry, I have to go look up

"Submit an answer WITH a counter claim on FDCPA violation."

[FL4answer58]

Court date is Mon. Motion for Final Summary Judgment. Therefore I don't know your answer except what I get out of the papers is;

"The lawyers will be on the phone while I plead my case and the judge will make the decision and they will agree to it." I don't think they care anymore, just hoping I don't show. But I'm going.

I'm sorry, I have to go look up

"Submit an answer WITH a counter claim on FDCPA violation."

No problem - get back to me - I have some work to research on your issues as well.

When you go back to hearing - you will be prepared. Don't worry - if this is correct you do not have to pay anyone on a debt you already settled and paid.

Are you absolutely positive this is same debt - same account?

Edited October 2, 2010 by FL4answer58

[zendi]

ok, then...they are not in the right county even. You can do that? The original contract was in a different county than where they filed against me.

I really don't want a delay as I am not stalling. I want it dismissed as unfounded with all accounts being closed and paid. Is that possible.

[zendi]

Are you absolutely positive this is same debt - same account?

[FL4answer58]

I really don't want a delay as I am not stalling. I want it dismissed as unfounded with all accounts being closed and paid. Is that possible.

YES possible

A good case to look at is Smith v.Mallick, 514 F.3d 48 (D.C.Cir. 2008)

You have alot to do for Sunday if Monday is hearing - but can stop SJ.

Explain this to me… “They filed, I responded.”

So all that happened was you filed an answer back – then now hearing for SJ a year later?

What did the judge do with your initial response?

What was in that response?

[FL4answer58]

OK you have a few choices:

DEFENDANTS RESPONSE TO PLAINTIFFS MOTION FOR SUMMARY JUDGEMENT

.

You can Simply cross-move for summary judgment in your favor

And DEFENDANTS MOTION FOR SUMMARY JUDGEMENT

What you would argue is that, assuming defendant's version of the facts as alledged in his motion to be true, defendant's motion should be denied and your motion should be granted.

What I would suggest you look up: http://findarticles.com/p/articles/mi_hb6367/is_9_77/ai_n29033057/

“Sham Pleadings” in Florida: Florida Rule of Civil Procedure 1.150.

(*) Let me explain that, in Florida, a summary judgment motion is not the only vehicle for challenging the factual support of your opponent's case; you can also move to strike as sham.

The two motions are similar in another respect: they require essentially the same burden of proof. True, summary judgment motions require a showing that there be "no genuine issues as to any material fact," (2) whereas motions to strike sham pleadings require a showing that the pleading is "a mere pretense, set up in bad faith and without color of fact," (3) or that it is "inherently false and, based on plain or conceded facts, clearly known to be false at the time the pleading was made." (4) As articulated, the two burdens seem to be quite different. The Florida Supreme Court, however, has held that such is not the case and that motions to strike sham pleadings are subject to the same burden of proof as summary judgment motions. (5) These basic similarities notwithstanding, there are some differences between the two motions--differences which may make it preferable to eschew a motion to strike as sham and pursue instead a motion for summary judgment. First, a motion to strike sham pleading requires the court to conduct a full-blown evidentiary hearing that may include the taking of live testimony. (6) In effect, Rule 1.150 seems to contemplate a mini-trial without the benefit of discovery - TO YOUR ADVANTAGE.

----------------------------------------------------------

(1) "If a party deems any pleading or part thereof ... to be a sham, that party may move to strike the pleading or part thereof before the cause is set for trial and the court shall hear the motion, taking evidence of the respective parties, and if the motion is sustained, the pleading to which the motion is directed shall be stricken." FLA. R. Civ. P. 1.150(a).

(2) FLA. R. Civ. P. 1.510©.

(3) Yunger v. Oliver, 803 So. 2d 884, 886 (Fla. 5th D.C.A. 2002), citing Ader v. Temple Ner Tam id, 339 So. 2d 268, 270 (Fla. 3d D.C.A. 1976).

(4) Yunger, 803 So. 2d at 886, citing Menke v. Southland Specialties Corp., 637 So. 2d 285 (Fla. 2d D.C.A. 1994). See also St. John's Med. Plans, Inc. v. Physician Corp. of America, 711 So. 2d 1329, 1331 (Fla. 3d D.C.A. 1998).

(5) Meadows v. Edwards, 82 So. 2d 733, 735 (Fla. 1955) ("In order to justify the striking of a pleading for being sham or false it must be shown to be so undoubtedly false as not to be subject to a genuine issue of fact. The motion should be tested by the same standards as a motion for summary judgment .... A motion to strike a pleading as false should not be granted under the circumstances when a motion ... for a summary judgment could not properly be granted.")

(6) "Rule 1.150(a) contemplates a full evidentiary hearing[.l" First v. Blackman, 744 So. 2d 1222, 1224 (Fla. 4th D.C.A. 1999).

(7) But .see Meadows, 82 So. 2d at 735 ("A hearing on a motion to strike pleadings, or on a motion for summary judgment is not to try the issues, but to determine whether there are any genuine issues to be tried.").

(8) "The motion [for summary judgment] shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall be served at least 20 days before the time fixed for the hearing." FLA. R. Civ. P. 1.510©.

(9) FLA. R. Civ. P. 1.150(a) ("Default and summary judgment on the merits may be entered in the discretion of the court.")

(10) Id.

(11) FLA. R. Civ. P. 1.150(a) ("or the court may permit additional pleadings to be filed for good cause shown.").

(12) This statute reads, in part: "Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or( Would not be supported by the application of then-existing law to those material facts."

(13) FLA. R. Civ. P. 1.510© ("The judgment sought shall be rendered forthwith if ... there is no genuine issues as to any material fact.").

(14) See Dimick v. Ray, 774 So. 2d 830, 832-33 (Fla. 4th D.C.A. 2000) ("Amendments should be liberally granted, particularly when the motion is made prior to the hearing on a motion for summary judgment."); Plyser v. Hados, 388 So. 2d 1284, 1285 (Fla. 3d D.C.A. 1980) ("leave to amend should be freely given, particularly where ... the party seeks amendment at or before a hearing on a motion for summary judgment").

(15) See Cardona v. Benton Express, Inc., 804 So. 2d 505,507 (Fla. 3d D.C.A. 2001) (noting that a party may, with leave of court, amend a pleading after a ruling on a summary judgment motion, but not if doing so would inject a new cause of action into the case). See also Skilled Srvs. Corp. v. Reliance Ins. Co., 763 So. 2d 1092, 1093 (Fla. 4th D.C.A. 1999).

(16) FLA. R. Civ. P. 1.150, Authors' Comments (1967).

---------------------

I favor 'Motion To Stike Pleading FLA. R. Civ. P. 1.510©.'

Edited October 3, 2010 by FL4answer58

[zendi]

Explain this to me… “They filed, I responded.”

NOTE: Midland filed on 1/22/09

Meaning: After I was served, I filed a response that I got it and the charges were false and submitted my original statements of payment as proof of my claim to the court and ask the judge to dismiss the case.

Court sent letter to lawyer that I responded.

Judge/Court did nothing with my request. (maybe did not do it right)

The case sat dormant since I filed my response. (within 30 days of summons)

Court issued statement of dismissal of judgment to lawyers on 6/22/10

Midland/Lawyers request continuation with good cause and the submitted a sword oath doc. from a the Midland employee.

Judge then grant good cause motion. Set court date.

Lawyers request to appear by telephone for 15 minutes. Judge granted 15 minutes.

So, they have submitted 3 doc. 1 check from Household, Midland's accounting statement,

and a sworn oath from some girl.

[FL4answer58]

Hearing is monday - to late for 'Motion To Stike Pleading FLA. R. Civ. P. 1.510©.'

But read it an study it for 'oral' argument'

Present your case in hearing dont ask - but demand to show the judge to allow my documents as proof to the false accusation against you'

Use positive language ' May I - your honor...'

Object to the telephone appearance by Atty - for record.

DO YOU HAVE A SIGNED AGREEMENT FROM PAY OFF OR SETTLEMENT LETTER FROM THE LAST COLLECTOR YOU PAID ON THIS DEBT - ANYTHING IN WRITTING TO INDICATE THIS AGREEMENT?

Use that IF you have it - It is your best defense - no matter what you paid - it now becomes 'controversy' against SJ.

What did Midland buy from the original creditor?

If Taken out in 2003 paid off Mid May 05.

The OC may not have correctly closed out as paid in full.

This appears to be the issue - controversy. You will need time to get all this together - call the OC - have you already done that?

What did OC say - closed - Paid in Full?

Something just does not sound right - the judge should have tossed this case out in begining on your evidence alone. What did you show to prove payment?

Canceled checks or agreement paid in full?

Edited October 3, 2010 by FL4answer58

[zendi]

woohoo, thanks, that was what i was looking for and what i will do. As I see it they have put themselves at a disadvantage by not appearing in person and stating they will accept what the court deems fit. (i will point that out over and over if needed)

I will demand the judge allow the documentation as i can not afford representation and point out I did submit them to the court prior to the date. The judge will have all of a few minutes to make a decision. It will be dismissal, continuation (then I'll slap all kind of stuff at them) either way I'll ask (demand) for no SJ if i looks as if the judge is swaying.

I will read up on the info you offered. If I do not post tomorrow I will for sure let you know how it goes.

I took photos of their doc's. if you ever want to review them.

[FL4answer58]

Read here about sworn affidavits - hearsay if Midlands own rep.

Midland's accounting statement, and a sworn oath from some girl - if from Midland and NOT the origianl OC.

If so - The girls affidavit is hearsay. No good.

Hell the check from Household is just proof you paid - thank them.

They have nothing else - no material facts of debt is due.

If, the judge moves for SJ in favor of Midland - go home and appeal.

No way a higher court will confirm. It will be overturned on appeal.

[zendi]

FYI: The documentation I have are monthly statement (you get in the mail) from Household showing what payment I made ans what is due the next month. I have no payoff statement I guess as it was an unsure loan.

However, my statement shows payments of 3,000 all at once and 500.00 the next month and so on. I do not have the last payment statements showing o balance but I do have bank statement with Household on it showing telephone payments. Again, I can prove all but 178.00 dollars accounted for.

I really didn't want to call my OC (yet, as I already have proof) as either they made a mistake OR there are practicing very bad behavior and my gut tells me the latter and I did not want to give away my hand in case this was going somewhere bad.

However, based upon Monday's outcome, they will be hearing from me.

My Bad here. The check they submitted as 'proof' is the check that was sent to me to cash for the loan. It was a personal loan. But shows proof (to me) against their own other doc's...all in all it makes no sense beside they are just looking for default judgment.

It like they contradict themselves and nobody (court) takes notice. Thanks again. I will sleep tonight.

[Anne Tyler]

It seems to be SOP on the part of Midland now to have these hokey affidavits. Who are they supposed to impress? What they amount to is a "trust me, I know" kind of document.

Why bother unless it is to intimidate and to deceive the unwary that they have something when they don't. And attempts to deceive are an indication that they have nothing because if they had something they'd produce that instead of this worthless document.

I have one of those in my case and it wasn't even prepared properly. Is Midland et al the only one doing this or is this going to be SOP for all collectors?

[FL4answer58]

Please read this as well: http://nedap.org/pressroom/documents/DEBT_DECEPTION_FINAL_WEB.pdf

"In one shocking example, a debt buyer sued (defendant) twice for the same debt. In the first case, she obtained a dismissal with prejudice, which means that the court made a final determination that she did not owe the debt, and the case could never be brought against her again. Despite this result, (the JDB) sued (defendant) again two years later on the same debt. This second suit was unlawful and never should have been filed, but (the JDB) ultimately agreed to settle this unlawfully filed case for $75 per month."

[MrMarshall]

Even if you owed $178, it doesn't equate to $7,000. I'm interested to know what the outcome is. good luck

[zendi]

Good News as you see. Thank you for the info to help me prepare.

I have some very interesting facts of what happened to share but I will have to post these later.

I will tell you I did not say a word the whole time except thank you when the judge ruled.

The plaintiff's counsel said the defense prepared well and 'we' have no rebuttal against the documents I submitted. Plaintiff agrees to allow judge to rule at her discretion.

So with out me saying anything Judge ruled dismiss w/o prejudice.

(I was going to ask for w/prejudice but I was not about to challenge a judges decision)

Judge was nice enough to explain ruling (thank to you all here I already knew)

and told me it would be unlikely they would try again).

BTW, I believe the judge was already going to rule this anyway as I was left out of the whole conversation and not asked anything. Plus, get this everyone. When the judge called and the lawyer answered he did not even greet anyone he said "they showed up." The judge was a little taken aback by this I think. The bailiff eyebrows went to the roof. From that point the judge completely took control of everything.

I thanked her, she said, no need to thank me. That's it.

I will post info later. I have some items of interest we uncovered in the original doc's for plaintiff that they are doing. IE: They are trying to fill in the defense loopholes they are leaving behind.

[FL4answer58]

Thats good news 'zendi'

Congrats!

[zendi]

Thats good news 'zendi'

Congrats!

Yes ! Yes ! Thank you, Any loss against Midland is a win for all.

Here is the wording that was used by lawyers when they filed for motion for final summary judgment. Even after i offered up my burden of proof doc's.

1. That there is no genuine issue as to any material fact, and the Plaintiff is entitled to summary judgment as a matter of law, as shown by the attached affidavit. (the one from there own employee, not the OC)

2. Plaintiff is entitled to a summary final judgment against the defendant based upon the grounds that it's claims is established by the complaint and exhibits thereto, the affidavits filed in support of this motion and discovery filed in this action. ( Their discovery was a computer print off billing statement from Midland Funding...not the OC ) These documents actions

establish evidentially the unpaid balance owing plaintiff by the defendant.

Martyn v amold, 19 so. 791 (fla. 1985)

Gendzier v bielecki, 97 so.2d 605 (fla. 1975)

3.)Plaintiff's prima facie case, if rebutted only by the defendant's general denial, is insufficient to avoid judgment against the defendant.

They then referenced:

sherman v weintraub, 132 so. 2d 421 (3rd DCA 1961)

accurate metal finishing corp. v carmel, 254 so. 2d 556 (3rd DCA 1969)

ham v heintzelman's ford, inc, 256 so. 2d 264 (4th DCA 1971)

edwards v trulis, 212 so 2d 893 (1st DCA 1968)

4) Any affirmative defenses filed by defendant have been specifically rebutted in Plaintiff's Affidavit. ( totally untrue, the affidavit did not dispute one single item I submitted.)

They claim the billing statement print off from Midland Funding is their proof of discovery.

They claim they electronic check print off is proof I owe the debt.

The affidavit they are claiming is good cause and proof of material fact.

The whole case filing (in my case) is all lies.

They completly manipulated:

dates and money owed value,

documents,

statements and affidavit all to their benefit.

They showed no proof of nothing.

[zendi]

Ask the judge after dismissal and quote

5 years after filing....

what does that mean exactly