Midland files Affidavit with Motion for S.J. Instanter

[indigoesagain]

So in my fight with Midland they filed the suit, I answered with request for production, they sent a few basic documents and interrogs and admissions, I answered. Sent letter to settle and it was ignored.

Now they've filed a Motion for Leave to File for Summary Judgement Instanter and a Notice of Non Oral Hearing.

With the SJ they included the non specific garbage they produced with my request for production AND an Affidavit signed by someone in NM who they claim is a legal spe******t with Midland saying if called this person will testify as a witness and competently testify as to all the facts stated.

What the heck? Isn't this what Midland just got spanked for in OH?

Now what do I do?

[RebelLady]

And even more recently in Indiana and illinois...

RL

[indigoesagain]

So do I need to file a response to this Leave to file Motion for SJ Instanter?

[BV80]

So do I need to file a response to this Leave to file Motion for SJ Instanter?

Read your court rules. In my state, we can file an Objection to Motion for Summary Judgment. You just state the reasons why summary judgment should not be granted, and include case law for your state or District Court of Appeals that back up your reasons. I don't know if it's absolutely necessary to include case law, but it does help.

[admin]

And just because they filed a motion doesn't mean it will be granted. Definitely be more proactive and file an objection if allowed by your state civil procedures.

[indigoesagain]

Can someone please tell me what this means?

The Judge granted plantiff's "motion for leave to file motion for summary judgment instaner".

Does that mean the plantiff can now file an SJ? Or that they already got it?

Confused. Whats the next step or are we SOL?

[tigra]

That means they can file a MSJ. I would strike their affidavit as hearsay since this person does not have any original knowledge of the account. What else do they have? Statements? Agreement?

[indigoesagain]

They have a statement showing a $0 balance from charge off and a generic "we bought the debt from GE" crap. Nothing specific. No signed contracts and that affidavit that says this person from Midland "has personal knowledge of Midlands accounts". In their response to my request for documents they admitted to having no other account info.

Does anyone have an example of a motion to strike for OH? Wondering what ORC were sited for no signed contract?

Thanks

[tigra]

you would have to read hearsay and evidence rules for your state first. Find out what is considered hearsay in your state, find the laws and applicable chapters, etc. PM me and i will send you the sample have for motion to strike. You will have to tweak it of course so it applies to your situation, and i also do not have case law in it, so if you want me to send it to you--let me know. You can research this case law :

Delawder v. Platinum Financial, 443 F. Supp. 2d 942 (S.D.Ohio March 1,2005);

Griffith v. Javitch, Block & Rathbone, LLP, 1:04cv238 (S.D.Ohio, July 8, 2004);

Gionis v. Javitch, Block & Rathbone, 405 F. Supp. 2d 856 (S.D.Ohio. 2005);

Blevins v. Hudson & Keyse, Inc., 395 F. Supp. 2d 655 (S.D.Ohio 2004), later opinion, 395 F.Supp.2d 662 (S.D.Ohio 2004);

All of it would relate to hearsay affidavits that were stroked. I hope this helps

[indigoesagain]

Going to file a motion to strike all the exhibits they presented.

When I originally answered the initial complaint I requested discovery. I asked for (among other things)

"A contract, agreement, assignment, or other means demonstrating that Midland Funding, LLC had the authority and capacity, and was legally entitled to collect on the alleged debt from XXX OC".

"Complete chain of custody"

In my motion to strike can I raise the objection that they didn't include this signed affidavit, (which by the way was signed BEFORE they even filed the suit) in my request for production?

[BV80]

As Tigra stated, read your court rules. They will let you know when to file an Objection to Motion for Summary Judgment.

"A contract, agreement, assignment, or other means demonstrating that Midland Funding, LLC had the authority and capacity, and was legally entitled to collect on the alleged debt from XXX OC".

I know they didn't provide that "contract" because they don't have it.

"Complete chain of custody"

Even if they provided a chain of custody (Bill of Sale or Assignment), it doesn't prove they own your alleged debt. All it proves is that they bought a portfolio full of debts. More than likely, they cannot prove your specific debt was included in that portfolio.

In my motion to strike can I raise the objection that they didn't include this signed affidavit, (which by the way was signed BEFORE they even filed the suit) in my request for production?

I'm not sure if it matters when they provided it as long as they did send it to you. In any case, it's useless. The affiant works for Midland. He/She doesn't (nor have they ever) worked for the OC. That person's so-called knowledge is based upon a portfolio full of debts. They have no way of knowing if they records they allegedly purchased are accurate.

1. They haven't proven your debt was in the portfolio.

2. They haven't proven they own ANY debt allegedly owed by you.

3. How can they have personal knowledge of a debt that haven't proven they own, that you owe, or even exists?

[indigoesagain]

No they haven't proven ownership of the debt. The brief they filed in support of the SJ states the material facts in this case are undisputed. How can they make that statement when in the Request for admissions and interogs I admited to nothing? For proof they keep going back to exhibit A which is the bogus Affidavit.

My favorite statement in this is "The defendant has not produced any evidence to demonstrate that this account was paid in full". To avoid SJ, the Defendant must go beyond the bare denial in Defendants answer and bring forth evidence to rebut Plaintiffs evidence. "Dresher v. Burt, (1976) 75 Ohio St. 3d 293. Defendant has not met this burden as Plaintiffs affidavit demonstrates that there is a balance due".

Since when does the defendant show burden of proof on a debt not proven?????

So if I've got this correct, I need to file...

(1) Motion to strike Affidavit (and other exhibits)

(2) Objection to SJ

I've gone back to rules of Civil Proceedure but I need to verify I'm on the right track here.

Anyone else with input would be greatly appreciated.

Thanks.

[BV80]

Dresher v. Burt:

Civil procedure -- Standards for granting summary judgment under

Civ.R. 56 when a moving party asserts that a nonmoving party

has no evidence to establish an essential element of the

nonmoving party’s case -- Civ.R. 56, construed and applied.

(No. 94-2612 -- Submitted January 10, 1996 -- Decided March 6, 1996.)

No evidence? Midland is the one who brought suit. What evidence have they provided?

My favorite statement in this is "The defendant has not produced any evidence to demonstrate that this account was paid in full". To avoid SJ, the Defendant must go beyond the bare denial in Defendants answer and bring forth evidence to rebut Plaintiffs evidence. "Dresher v. Burt, (1976) 75 Ohio St. 3d 293. Defendant has not met this burden as Plaintiffs affidavit demonstrates that there is a balance due".

You don't have to provide evidence that anything was paid in full. They must provide evidence that they own the account, that it's your account, that the balance is accurate, and that they are entitled to collect from you.

Since when does the defendant show burden of proof on a debt not proven?????

This is my opinion. If it's wrong, hopefully someone will speak up.

It doesn't matter if a balance is due. What matters is if the balance is due to the Plaintiff and if you are liable to the Plaintiff. Just because a balance is outstanding doesn't mean the Plaintiff has a right to collect that balance. Did Midland prove your specific debt was part of the portfolio they purchased?

Has the Plaintiff proven the balance?

Motion to Strke the Affidavit as hearsay. The Affiant is an employee of Midland, not the OC. The affiant was not a witness to the record keeping methods of the OC and cannot attest to the validity or accuracy of any documents included with each and every alleged debt in the portfolio.

The Plaintiff has not proven they purchased ANY debt allegedly owed by you. They have not proven your alleged debt was included in a purchased portfolio. They have not proven they OWN any alleged debt owed by you, therefore, how can they have personal knowledge of a debt they cannot even prove they own?

If you can find case law in your state, or in your District Court of Appeals, that would help.

Edited October 25, 2010 by BV80

[nobk4me]

In Ohio, JDBs have to show compliance with ORC 1319.12:

http://codes.ohio.gov/orc/1319.12

including disclosing how much they paid for the debt. At least that's how I read this, as applying to JDBs.

[indigoesagain]

I completely agree with you BV and now I have to convey that in my Motion and objection.

Very nice nob...that is just what I need to strike the bill of sale!

Putting together my Motion to strike then will work on objection to SJ.

Thanks for the informative answers. Right now my Motion is pretty long...trying to condense a bit.

[nobk4me]

Also check out Asset Acceptance v. Proctor, an Ohio case where the court held the JDB must provide a complete accounting of the debt, preferably from a zero balance.

[BV80]

Here's a good article:

http://creditfactors.com/2009/10/class-action-federal-court-holds-debt-buyer-midland-affidavit-patently-false/

[indigoesagain]

Nob, I've listed that particular case in order to strike the alleged cc statement.

Question...Plaintiff submitted Exhibits A B C- Affidavit, cc statement & bill of sale.

When I file my motion to strike, should I file a motion seperately for each exhibit or include them all on one Motion?

I also have to file a brief in support of my motion so wonder if I filed each motion would I then be required to file a brief for each? Seems excessive.

Great article BV. I actually went to that courthouse yesterday to pull that case but couldn't find anything. I know it was assigned from city to county but looks like it went to US district with all records.

Does anyone know if its still in litigation? Can it be sited if still in litigation? How about citing the opinion? Does that hold any weight?

Thanks all.

[nobk4me]

I would file one motion to strike all the exhibits.

[KentWA]

A single motion to strike all three. Also include as a reason to strike it that plaintiff failed to produce the affidavit during discovery.

[BV80]

If you go to the bottom of the article I linked, it provides links to a copy of the court case and a copy of the court memorandum.

[indigoesagain]

Thanks everyone.

I did mention that "Affiant" signed the "affidavit" (mine is not titled Affidavit of Debt but just Affidavit of Susie Butthead" and wrote "Plaintiff is the current owner of, and/or sucessor to, the obligation sued upon........"

WELL...the affidavit was signed 6 MONTHS BEFORE the suit was filed. So how could she refer to "the obligation sued upon" when no suit had been filed?

Thanks Kent, I will mention the failure of the Plaintiff to produce this in discovery. Obviously it was there because she signed it a FULL 6 MONTHS before the suit was even filed!!!!

BV I found the memorandum and its quite the slam dunk regarding these affidavits. Cant wait to slap them with their own wet noodle.

Right now I have 2 motions to strike. My motion to strike the affidavit is already 3 pages. In Ohio you have to support Motions with memorandums of authority so after citing caselaw and codes to my 15 points its quite lengthy.

Think it would be bad to file Motion to strike the bill and statement on one motion and the affidavit on another?

Also I still have to file with this my objection to SJ, correct?

One thing I noticed is that Plaintiff's attorney sent an "Entry" with their "Leave to File Motion for SJ Instanter". It was signed by the attorney and left a place for the judge to sign as well. I dont need such an animal with my motions do I?

I assume I need to file the Motions to strike WITH the objection to SJ? Feels like I'm just repeating what I said in the Motion...maybe I've got too much in the motions?

[colormeruby]

One thing I noticed is that Plaintiff's attorney sent an "Entry" with their "Leave to File Motion for SJ Instanter". It was signed by the attorney and left a place for the judge to sign as well. I dont need such an animal with my motions do I?

Yes, you need something like this. In my state it is an "order" to strike evidence, then you LIST what you motioned to strike. Mine say something like "It is hereby ordered on this day_________ of _______ that the following be be stricken as evidence from this case.", "list to be stricken", "by order of the judge_____________, XXXXx county court"

I turned in all my motions originally without orders, but in looking over someone's docs saw my mistake and took the orders to the clerks office. Since I had not gone over my allotted days, they said no problem with taking them at that time.

edited to add...you should try to find an example in your own court, or use the CA's "entry" as a sort of guide to the format. Always look over your states guidelines for documents, though I will say, finding this "order" in a template, in my states books was nearly impossible. I think this is because, out of all the documents, this one is relatively easy to format. It is original to what you have pleaded so no one here will be able to "tell" you what to put on it.

Edited October 29, 2010 by colormeruby

[indigoesagain]

I spent days in two counties trying to find one flipping case where they fought back against Midland. Guess what? NOTHING. Most were SJ's and a handfull were dismissed with no answers filed (I assume they negotiated).

Motions to strike in ohio have to have Points and Authorities. I'm assuming I can site Revised code and caselaw?

Then the brief in Objection to SJ feels like I'm just repeating the same thing. Kinda stupid. I wish I had something to go from but just cant find anything state specific.

My county doesn't list a filing fee for motions except in cases of divorce when motions are filed after the case is settled. I've been able to mail stuff in for filing but not sure if I'll do that this time.

I've got way too much time invested in this. Hope what I have is right. Guess the worst that can happen is they are granted their SJ but if they are I will have serious doubts about our legal system.