Judge did not like Midland!

[ripple]

As previously described:

Midland says they acquired my debit from CC. They served me with their complaint and affidavit from one of their employees.

I timely filed an appearance and a motion to dismiss- Midland had failed to comply with 735 ILCS 5/2-606 (no contract or bill of sale that proves they have title to the claim) I did not address the affidavit in this motion.

I appear on the trial date today- the Midland attorney says they are not ready. They have a few cases up for trial- not ready on them all.

The Judge rules Dismissed without Prejudice, the Blatt et al attorney has a form already, check boxes for with or with prejudice, with their address etc on the bottom. The Judge clearly does not like Midland, the attorney is trying very hard to be nearly invisible- they have all (Judge, attorney, clerks) done this many times before as they are all very efficient and the Judge has a pat speech on what without prejudice means to me. He eyeballs the Midland attorney when he says "so they can come back with all of this stuff again- then we ALL start all over again."

He orders Midland to pay my appearance fee of $120 in 30 days.

Is it possible that this particular Judge is not someone Midland will want to be up against again? He is new to this bench and his bio reads that he is actually a really good Judge- many important cases others had lots of respect for his rulings.

What is anyones best guess for Midland's next move?

Edited January 13, 2011 by ripple

[WhoCares1000]

Next move, will probably sell off the debt to someone else because they see you as someone who will fight. 3 cases where defendants had shown up, I would guess that they had about 90 cases where the defendants did not show up or file an answer. Guess which cases they really cared about?

So to reiterate, the next move will probably be to sell the debt to someone else rather than try to refile the court case. The "Without Prejudice" designation will at least allow Midland to get something for the debt.

[BV80]

The "Without Prejudice" designation will at least allow Midland to get something for the debt.

Even if the debt was dismissed with prejudice, Midland could still sell it.

[WhoCares1000]

Even if the debt was dismissed with prejudice, Midland could still sell it.

True but I bet they cannot get as much for the debt if it was dismissed with prejudice as they can get if it is dismissed without prejudice.

I cannot see the courts allowing 3 different plaintiffs to be able to try to sue on the same debt 6 months from each other, especially if they cannot even prove the debt then the defendant answers. The courts are extremely overworked due to budget cuts. As a result, these judges are going to start to get angry that these issues keep showing up and at some point will say put up or shut up.

Otherwise if the resell issue keeps happening, defendants are going to start requesting that dismissals be denied and that they are entitled to their day in court and want to clear up the issue for once and for all. It makes no sense for the defendant to have to worry that they will have a lawsuit every 6 months over the same debt.

[BV80]

True but I bet they cannot get as much for the debt if it was dismissed with prejudice as they can get if it is dismissed without prejudice.

I cannot see the courts allowing 3 different plaintiffs to be able to try to sue on the same debt 6 months from each other, especially if they cannot even prove the debt then the defendant answers. The courts are extremely overworked due to budget cuts. As a result, these judges are going to start to get angry that these issues keep showing up and at some point will say put up or shut up.

Otherwise if the resell issue keeps happening, defendants are going to start requesting that dismissals be denied and that they are entitled to their day in court and want to clear up the issue for once and for all. It makes no sense for the defendant to have to worry that they will have a lawsuit every 6 months over the same debt.

Not all JDBs are going to sue. Some will realize suing over a debt that is outside the SOL is a waste of time, especially if the alleged debtor sends them a C&D letter.

[WhoCares1000]

The OP has not said what the DOFD is yet so we cannot say if this an OSS debt or not. Remember, the SOL is also tolled each time a case is open so for each JDB to try to sue, that could extend the SOL easily by 3 - 4 years in a 6 year state (which most are). However, to be sued more than twice on the same debt to me is an abuse of court system if the plaintiff continually dismisses every time the defendant puts up a defense rather than rolls over.

No, not all JDBs go running to the courts either (at least not in most states where there is a cost to them). In this case, Midland probably paid about $10 for the debt, $120 for the defendants fees, who knows what their legal costs are, and for their other overhead. They now will probably get $5 - $8 for the debt so that is a huge loss. Other JDBs may not be interested in taking the loss, especially if it is reported to them that the defendant actually fights.

So the chances of a refiling depends on who gets the debt next and nothing more.

[jackson212]

i think regarless of with/without, nobody else can touch you.

think of it like this:

midland does not own the rights to the debt. (im only assuming) therefore midland cannot sell the debt. IF midland sells the debt, eventually midland would still need to evidence they owned the debt in order to sell it (i.e. full chain of assignment from original creditor to whoever is the assignee)

if anyone buys the debt from midland, they will be screwed. you can then sue midland for selling a debt it does not own, and sue their attorney for failure to conduct attorney review, then sue the new assignee for suing you on a debt taht they dont own, and sue the new assignee's attorney for lack of attorney review.

this is all assuming midland doesnt own the rights to the debt, by the implication that it is unable to produce a bill of sale/assignment document.

i would say you are fine right now, and the next time someone brings up this debt counterclaim for fdcpa violations. IMO

[ripple]

The OP has not said what the DOFD is yet so we cannot say if this an OSS debt or not. Remember, the SOL is also tolled each time a case is open so for each JDB to try to sue, that could extend the SOL easily by 3 - 4 years in a 6 year state (which most are). However, to be sued more than twice on the same debt to me is an abuse of court system if the plaintiff continually dismisses every time the defendant puts up a defense rather than rolls over.

No, not all JDBs go running to the courts either (at least not in most states where there is a cost to them). In this case, Midland probably paid about $10 for the debt, $120 for the defendants fees, who knows what their legal costs are, and for their other overhead. They now will probably get $5 - $8 for the debt so that is a huge loss. Other JDBs may not be interested in taking the loss, especially if it is reported to them that the defendant actually fights.

So the chances of a refiling depends on who gets the debt next and nothing more.

I thought SOL (Illinois is 5 years) is from date of last payment? SOL not up until 2012 if so...

[WhoCares1000]

The point being made is the question on whether the debt will be sold and the next JDB files another suit. As long as the SOL has not expired, yes that can happen if the case was dismissed without prejudice.

[hopefulscambeater.]

The thing is (IMO) Does anyone "like Midland" With ALL their illegal tactics , phony affidavits etc. methinks Judges will be "catching on" for some time to come:D

[BV80]

The point being made is the question on whether the debt will be sold and the next JDB files another suit. As long as the SOL has not expired, yes that can happen if the case was dismissed without prejudice.

Perhaps I'm simply misunderstanding what you're trying to say. My point is that even if the debt is dismissed with prejudice the JDB can still sell the debt and the new JDB who purchases the debt can still file suit.

[hopefulscambeater.]

I "think" that may vary with States, Wife's lawyer said WITH Prejudice they can't ????????

[calawyer]

$120 may be more than Midland paid for the debt. My guess is that Midland will not pay without a lot of prodding on your part. You might be able to negotiate a dismissal with prejudice for a reduction in the amount you are owed (or forgiving it altogether).

As far as the statement that Midland could still selll the debt even if the case were dismissed with prejudice, that may technically be true. However, I don't think any JDB would purchase the debt if they knew the true facts especially if they knew the defendant answered and obtained the dismissal plus an award of costs.

[BV80]

I "think" that may vary with States, Wife's lawyer said WITH Prejudice they can't ????????

If a JDB "A" files suit and it's dismissed with prejudice JDB "A" cannot sue again. JDB "A" can sell the debt however. JDB "B" who buys the debt and is the new owner can then bring a suit.

But as CAlawyer said a new JDB would be hesitant to buy a debt that had been dismissed with prejudice.

Edited January 14, 2011 by BV80

[jackson212]

if some new jdb brings a new suit, OP will hit them with the same motion.

good job OP, walked away with $120 and your head up

[calawyer]

JDB "A" can sell the debt however. JDB "B" who buys the debt and is the new owner can then bring a suit.

I would think in most jurisdictions, JDB B would be precluded from bringing suit. Two somewhat similar reasons apply.

The first is that JDB B would be the assignee of the debt from JDB A. Generally, an assignee “steps into the shoes” of the assignor. The assignee can’t acquire greater rights than the assignor. If the assignor is precluded from bringing suit, the assignee should also be precluded.

The second rule of law that would apply is res judicata or collateral estoppel. Generally, this means that when a final judgment has been entered, a subsequent judge confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. There are several requirements including the identity of issues actually litigated (here, the debt), and identity of parties. However, this latter requirement is often satisfied when someone who is aligned in interest with JDB A tries to bring a subsequent suit (some courts say that parties and their “privies” are bound by the prior judgment).

These concepts are fairly complicated and the rules may vary from state to state. However, if you are ever confronted with this issue, you should start your research with these concepts in mind. You might also contact a NACA lawyer in your area. I think they would take such a case in a heartbeat.

[single317dad]

I would think in most jurisdictions, JDB B would be precluded from bringing suit. Two somewhat similar reasons apply.

The first is that JDB B would be the assignee of the debt from JDB A. Generally, an assignee “steps into the shoes” of the assignor. The assignee can’t acquire greater rights than the assignor. If the assignor is precluded from bringing suit, the assignee should also be precluded.

The second rule of law that would apply is res judicata or collateral estoppel. Generally, this means that when a final judgment has been entered, a subsequent judge confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. There are several requirements including the identity of issues actually litigated (here, the debt), and identity of parties. However, this latter requirement is often satisfied when someone who is aligned in interest with JDB A tries to bring a subsequent suit (some courts say that parties and their “privies” are bound by the prior judgment).

These concepts are fairly complicated and the rules may vary from state to state. However, if you are ever confronted with this issue, you should start your research with these concepts in mind. You might also contact a NACA lawyer in your area. I think they would take such a case in a heartbeat.

Excellent information! I think it's important to point out, as there are a great many "legal newbies" that grace these forums, that the fact that "JDB B" may not have legal standing to sue will not likely preclude them from suing you. You as the Defendant still have to fight the battle to protect your rights. An attitude of "they can't sue me because (reasoning)" will sound great and make you feel good right up to the point where they get a default judgment against you. File the papers, go to court, and tell the judge why they can't sue you.

[citation]

Personal experience; I was the guy in the story that thought they couldn't sue me, and vastly underestimated the workings of the legal system.

[BV80]

I would think in most jurisdictions, JDB B would be precluded from bringing suit. Two somewhat similar reasons apply.

The first is that JDB B would be the assignee of the debt from JDB A. Generally, an assignee “steps into the shoes” of the assignor. The assignee can’t acquire greater rights than the assignor. If the assignor is precluded from bringing suit, the assignee should also be precluded.

The second rule of law that would apply is res judicata or collateral estoppel. Generally, this means that when a final judgment has been entered, a subsequent judge confronted with a suit that is identical to or substantially the same as the earlier one will apply the res judicata doctrine to preserve the effect of the first judgment. There are several requirements including the identity of issues actually litigated (here, the debt), and identity of parties. However, this latter requirement is often satisfied when someone who is aligned in interest with JDB A tries to bring a subsequent suit (some courts say that parties and their “privies” are bound by the prior judgment).

These concepts are fairly complicated and the rules may vary from state to state. However, if you are ever confronted with this issue, you should start your research with these concepts in mind. You might also contact a NACA lawyer in your area. I think they would take such a case in a heartbeat.

I think I understand what you're saying. In other words the second JDB could bring a suit but it wouldn't be successful.

[ripple]

... and a judgment can't happen if I show up and fight it.

[calawyer]

I think I understand what you're saying. In other words the second JDB could bring a suit but it wouldn't be successful.

I think in most states that would be true. I also think you would not need to do too much research for a motion to dismiss. The concept will be intuitive to the judge. And you have all of the equities in your favor. Some judge already spent a lot of time on a lawsuit over this same debt. It got dismissed. Now you want to litigate it again???????

[jackson212]

I think in most states that would be true. I also think you would not need to do too much research for a motion to dismiss. The concept will be intuitive to the judge. And you have all of the equities in your favor. Some judge already spent a lot of time on a lawsuit over this same debt. It got dismissed. Now you want to litigate it again???????

hahahahahhahha

[trialhelp]

As previously described:

Midland says they acquired my debit from CC. They served me with their complaint and affidavit from one of their employees.

I timely filed an appearance and a motion to dismiss- Midland had failed to comply with 735 ILCS 5/2-606 (no contract or bill of sale that proves they have title to the claim) I did not address the affidavit in this motion.WHEN DID YOU FILE MOTION TO DISMISS? DID YOU DO IT AFTER YOU FILED YOUR APPEARANCE? OR AT THE SAME TIME?

I appear on the trial date today- the Midland attorney says they are not ready. They have a few cases up for trial- not ready on them all.

The Judge rules Dismissed without Prejudice, the Blatt et al attorney has a form already, check boxes for with or with prejudice, with their address etc on the bottom. The Judge clearly does not like Midland, the attorney is trying very hard to be nearly invisible- they have all (Judge, attorney, clerks) done this many times before as they are all very efficient and the Judge has a pat speech on what without prejudice means to me. He eyeballs the Midland attorney when he says "so they can come back with all of this stuff again- then we ALL start all over again."

He orders Midland to pay my appearance fee of $120 in 30 days.

Is it possible that this particular Judge is not someone Midland will want to be up against again? He is new to this bench and his bio reads that he is actually a really good Judge- many important cases others had lots of respect for his rulings.

What is anyones best guess for Midland's next move?

When did you file motion to dismiss? Same time as you filed your appearance?

[KentWA]

Just a side note since Midland has a habit of reselling ever junk debt they are stuck with. Send them a letter that you dispute the debt. Then if they sell it and the next JDB lists it on your CR it will be without the "consumer disputes" notation. You can then sue them both in a single action. Midland for failure to communicate to others that it is disputed and JDB 2 for failure to list it as disputed as they should have had proceedure in place to know that (their contract will not require it). Even if you do not think you want to go on the offense by suing them, you have grounds for a nice counter suit if JDB B tries to sue you.

I got 2 other JDBs in this way and they were so busy fighting and pointing fingers they screwed up the case right out the gate and settled rather than face sanctions and remand to my back water county court.