Recommended Posts

Hey everybody. I need your help8] I recieved a motion for summary judgement through a local law firm for Midland Funding LLC. I'm scheduled to appear in 20 days. I need to know what I should do in the meantime to stop this matter. Should I file a motion as a preemptive strike in hopes of getting them to drop the lawsuit? In a conversation with the law firm representing them, I caught the guy in a lie. He said he was collecting on behalf of WaMu. He also stated that he didn't have to tell me how much the debt was purchased for. They sent me a packet of information showing some account history but nothing complete and no contract with my signature. They also haven't proved that they have the right to collect based on the information given. I'm in need of help desperately and need your opinions. Thanks.:)++

Share this post


Link to post
Share on other sites
Hey everybody. I need your help I recieved a motion for summary judgement through a local law firm for Midland Funding LLC. I'm scheduled to appear in 20 days. I need to know what I should do in the meantime to stop this matter. Should I file a motion as a preemptive strike in hopes of getting them to drop the lawsuit? In a conversation with the law firm representing them, I caught the guy in a lie. He said he was collecting on behalf of WaMu. He also stated that he didn't have to tell me how much the debt was purchased for. They sent me a packet of information showing some account history but nothing complete and no contract with my signature. They also haven't proved that they have the right to collect based on the information given. I'm in need of help desperately and need your opinions. Thanks.

Did you answer the Complaint? If this is a credit card debt...they don't have to provide a contract with a signature.

1. Is Midland the Plaintiff?

2. Is the debt within the SOL?

3. Did the account history show the date of last payment?

4. Did they send an affidavit with the Complaint?

5. Did you record the conversation?

Edited by BV80

Share this post


Link to post
Share on other sites
Did you answer the Complaint? If this is a credit card debt...they don't have to provide a contract with a signature.

1. Is Midland the Plaintiff?

2. Is the debt within the SOL?

3. Did the account history show the date of last payment?

4. Did they send an affidavit with the Complaint?

5. Did you record the conversation?

Yes, it is a credit card debt. Here is the answers to your questions.

1.Yes

2.Yes

3.Yes

4.Yes

5.No

I received numerous calls from them regarding the matter as well. The guy got upset over the phone and started questioning my moral etc. I also filed a complaint with the FTC regarding the matter. No, I did not answer the complaint. Thanks.

Edited by Mteezy

Share this post


Link to post
Share on other sites

Ok...a few more questions. Did you deny the debt? What did the affidavit say? Did they include a bill of sale...(chain of custody)?

You will need to write an "Opposition to Motion for Summary Judgment"

Summary judgment is granted when there are no issues of material. You will have to show there are issues of material fact.

I'm sure you've been reading that JDB affidavits are bogus. The affiant has no access to the original records of the OC and no original knowledge of the debt.

From the SC Rules of Civil Procedure:

RULE 602

LACK OF PERSONAL KNOWLEDGE

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

The bill of sale more than likely did not reference your name or account number. You attack this. They have not proven they are the real party in interest.

Share this post


Link to post
Share on other sites

I did not admit to or deny the debt. As far as I know, they did not include a bill of sale(chain of custody). I didn't see it in the paper work. I received the Plaintiff's First Set of Interrogatories To Defendant, Plaintiff's First Request For Production To Defendant, and Plaintiff's First Request For Admissions To Defendant. Also, I received some photocopies of my credit card statements. Thanks:-(

Edited by Mteezy

Share this post


Link to post
Share on other sites

Did you answer the discovery requests? Did YOU request discovery?

Sorry for so many questions but some background is necessary to try to help you along. Could you please post exactly what the affidavit said? You can leave out names and numbers of course.

Also...is the cause of action "breach of contract" or "account stated"?

Share this post


Link to post
Share on other sites

No, I did not answer anything. I did not request discovery. For the life of me, I cannot find the Affidavit letter. I know they sent me one but I can't find it. I have to look for it. If I can't find it though, then what:confused:

Share this post


Link to post
Share on other sites

Ok...let me research the rules. You should do the same. Here's the link:

http://www.judicial.state.sc.us/

Go to Quick Links and click on "court rules". Then click on "civil". Those are the rules you must follow.

I wanted to know what the affidavit said because if the affiant (signer) stated "upon information and belief"...I've got SC case law that states "information and belief" do not meet the requirements of the personal knowledge rule. That would blow the affidavit away.

Share this post


Link to post
Share on other sites

I don't believe you can do that. Was that affidavit provided with the Complaint? If it was...you can go to the courthouse and look through your file. If they filed it like they should have...it'll be in there. Make a copy of it and anything else in the file that you don't have with you.

My next suggestion is that you contact some consumer attorneys in your area. Most attorneys give free consultations. Some will even consult over the phone. Ask if you can go ahead and answer the discovery requests that Midland sent you. Even though your answers would be late...it might look better to the court if you go ahead and answer.

Does the Complaint state "breach of contract" or "account stated"?

Share this post


Link to post
Share on other sites

Okay. I go to the courthouse Monday morning an look through the file. I get back to you then. Thanks so much.

Share this post


Link to post
Share on other sites
Does the Complaint state "breach of contract" or "account stated"?

It might help to know the answer to that.

Share this post


Link to post
Share on other sites

I will let you know what the Complaint stated BV80. Thanks a bunch. It was most likely account stated but I'll let you know indefinitely.:p

Share this post


Link to post
Share on other sites

I would like the SC case law you have.

I've got SC case law that states "information and belief" do not meet the requirements of the personal knowledge rule. That would blow the affidavit away.

Share this post


Link to post
Share on other sites

To the original poster, did you file an anwser?? You didn't mention that, only something about not admitting to or denying the debt. I am just wondering why they would be rushing for summary judgment, perhaps you tripped up somewhere and need to know what to do so they don't capitalize. I assume you filed an anwser if they sent you discovery, that needs to be anwsered properly too though. I don't know, I took it as a good sign that in the course of my case that the plaintiff has not filed a motion foe SJ and are now trying to delay a response to my discovery request. By filing a MSJ the JDB has found something that you have done or not done that they think they can get an easy win on. However you shouldn't be fearful that you are sunk, I witnessed a JDB (LNNV) get a MSJ denied and the defendant didn't dispute the debt by saying it wasn't his, he said it was his ex-wife's, the JDB had no proof to prove it was the defendant's and the motion was denied. As other posters have said, you just need to make it clear to the court that there are issues still to be resolved.

Share this post


Link to post
Share on other sites
I assume you filed an anwser if they sent you discovery

I don't know about other states...but in SC an Answer does not have to be filed in order to receive discovery requests from the Plaintiff. A Plaintiff is allowed to send discovery requests along with the Summons and Complaint.

Share this post


Link to post
Share on other sites
I don't know about other states...but in SC an Answer does not have to be filed in order to receive discovery requests from the Plaintiff. A Plaintiff is allowed to send discovery requests along with the Summons and Complaint.

Okay. Here is a line from the Complaint.

(8) On information and belief, the Notice of Consumer's Right to Cure, as contemplated under S.C. Code Sections 37-5-110 and 37-5-111, was sent to the Defendant or was not required.

On the Civil Action Coversheet, the Nature of Action was "Debt Collection" not "Breach Of Contract".

On the Affidavit of Account:

(4) Upon information and belief, this action is based upon a revolving credit agreement entered into between defendant(s) and the original credit grantor. Upon information and belief, pursuant to the agreement, defendant(s) agreed to pay monthly installments to the original credit grantor for all goods and/or services and/or cash advances. Upon information and belief, defendants(s) used or authorized the use of the credit card account to obtain loans from the original credit grantor for the purpose of obtaining goods and/or services and/or cash advances but failed to make the payments due pursuant to the agreement. I ceritify under penalyt of perjury that the foregoing statements are true and correct to the best of my knowledge.

On the Affidavit of Services, they stated that they delivered to John Smith(wife) when actually it was my mother.

On the Memorandum In Support Of Plaintiff's Motion For Summary Judgment:

The Plaintiff's Request for Admissions addressed the following facts and issues:

A. The existence of the contract between the parties, the essential terms of the contract upon which the Plaintiff relies upon for recorvery under its cause of action:

B. The Defendant's default on one "of"(they mistyped a word, lol) more terms of the contract and subsequent breach of the contract:

C. The actions taken by the Plaintiff as a result of the Defendant's default and breach of the contract: and

D. The direct and consequential damages suffered by the Plaintiff as a result of the Defendant's breach of contract.

I wonder what they stated Breach of Contract in the Memorandum In Support of Plaintiffs Motion For Summary Judgement and marked "Debt Collection" as the Nature of Action on the Civil Action worksheet instead of marking Breach of Contract. Also, there is a typo on the Affidavit of Services. I didn't see anything about them requesting discovery. Is it on a particular form? Thank you guys so much for looking and helping me.:)++

Edited by Mteezy

Share this post


Link to post
Share on other sites

Their affidavit is not based upon personal knowledge. The affiant is not employed by the original creditor and does not have access to all the books and records of the OC. He/She was not involved in the daily record keeping and maintenance of the account and is not familiar with the record keeping methods of the OC. Therefore the affiant cannot testify as to the accuracy of the statements or the amount claimed in the Complaint.

Also...here's the case law for South Carolina concerning affidavits based upon "information and belief":

"Rule 56(e) requires that affidavits: "[1] shall be made on personal knowledge, [2] shall set forth such facts as would be admissible in evidence, and [3] shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e), SCRCP.

Allegations made upon information and belief do not meet the "personal knowledge" requirements of Rule 56(e)."

The above will be one of your objections to their MSJ.

I wonder what they stated Breach of Contract in the Memorandum In Support of Plaintiffs Motion For Summary Judgement and marked "Debt Collection" as the Nature of Action on the Civil Action worksheet instead of marking Breach of Contract.

"Debt collection" is the type of lawsuit. "Breach of Contract" is the cause of action.

I didn't see anything about them requesting discovery. Is it on a particular form?

No. Interrogatories...Requests for Admissions...and Request for Production of Documents would be titled and would be in the same format as the Complaint...court header...case number...etc.

In a previous post I suggested you contact a consumer attorney to get a few answers:

My next suggestion is that you contact some consumer attorneys in your area. Most attorneys give free consultations. Some will even consult over the phone. Ask if you can go ahead and answer the discovery requests that Midland sent you.

You really need to do that. Tell the attorney Midland sent no "chain of ownership" (bill of sale) and no cardmember agreement even though they're suing upon Breach of Contract. His answers would help.

Also I've got some homework for you if you're willing to fight this. Are you willing?

Share this post


Link to post
Share on other sites
Their affidavit is not based upon personal knowledge. The affiant is not employed by the original creditor and does not have access to all the books and records of the OC. He/She was not involved in the daily record keeping and maintenance of the account and is not familiar with the record keeping methods of the OC. Therefore the affiant cannot testify as to the accuracy of the statements or the amount claimed in the Complaint.

Also...here's the case law for South Carolina concerning affidavits based upon "information and belief":

"Rule 56(e) requires that affidavits: "[1] shall be made on personal knowledge, [2] shall set forth such facts as would be admissible in evidence, and [3] shall show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e), SCRCP.

Allegations made upon information and belief do not meet the "personal knowledge" requirements of Rule 56(e)."

The above will be one of your objections to their MSJ.

"Debt collection" is the type of lawsuit. "Breach of Contract" is the cause of action.

No. Interrogatories...Requests for Admissions...and Request for Production of Documents would be titled and would be in the same format as the Complaint...court header...case number...etc.

In a previous post I suggested you contact a consumer attorney to get a few answers:

You really need to do that. Tell the attorney Midland sent no "chain of ownership" (bill of sale) and no cardmember agreement even though they're suing upon Breach of Contract. His answers would help.

Also I've got some homework for you if you're willing to fight this. Are you willing?

Yes, I am willing to fight with all my might.:)

Share this post


Link to post
Share on other sites

Ok...this will help you in writing your Opposition to Motion for Summary Judgment. You need to find cases in which Midland (or any JDB) filed for MSJ but the defendant fought back.

Go to the court's website. Civil cases are public record online. Your need to search in the circuit court. When you get to the search page...write in Midland Credit. All the cases for Midland will come up. Click on any case that is "dismissed" or "pending".

If the case pending and an MSJ has been filed...see if the Defendant is represented by an attorney. If the attorney has filed an opposition or objection...write down the case number.

If the case is dismissed...it could be for several reasons. The JDB just dropped it for no apparent reason...or the case was settled...or the JDB filed an MSJ but the Defendant filed an opposition and won. If the MSJ was denied and then the case was dismissed ...it doesn't matter if the defendant was represented by an attorney or not. Whoever wrote the Opposition did a good job.

Any case that shows an Opposition or Objection to MSJ and Midland's MSJ was denied OR Midland dropped the case...write down the case number.

Take the case numbers to your courthouse and look up the files. Make copies of the Oppositions. They will show you the format AND possibly have some more case law you can use.

If you can't find any cases under Midland for oppositions to MSJ...search other JDB cases.

1. LVNV

2. Capital Management

3. Unifund CCR

4. Cavalry Portolio

5. Asset Acceptance

This could take a while but it will be worth it to prepare your opposition. Don't forget to call an attorney and get some advice.

Did Midland include attorney fees in the amount for which they're suing???

Share this post


Link to post
Share on other sites
Ok...this will help you in writing your Opposition to Motion for Summary Judgment. You need to find cases in which Midland (or any JDB) filed for MSJ but the defendant fought back.

Go to the court's website. Civil cases are public record online. Your need to search in the circuit court. When you get to the search page...write in Midland Credit. All the cases for Midland will come up. Click on any case that is "dismissed" or "pending".

If the case pending and an MSJ has been filed...see if the Defendant is represented by an attorney. If the attorney has filed an opposition or objection...write down the case number.

If the case is dismissed...it could be for several reasons. The JDB just dropped it for no apparent reason...or the case was settled...or the JDB filed an MSJ but the Defendant filed an opposition and won. If the MSJ was denied and then the case was dismissed ...it doesn't matter if the defendant was represented by an attorney or not. Whoever wrote the Opposition did a good job.

Any case that shows an Opposition or Objection to MSJ and Midland's MSJ was denied OR Midland dropped the case...write down the case number.

Take the case numbers to your courthouse and look up the files. Make copies of the Oppositions. They will show you the format AND possibly have some more case law you can use.

If you can't find any cases under Midland for oppositions to MSJ...search other JDB cases.

1. LVNV

2. Capital Management

3. Unifund CCR

4. Cavalry Portolio

5. Asset Acceptance

This could take a while but it will be worth it to prepare your opposition. Don't forget to call an attorney and get some advice.

Did Midland include attorney fees in the amount for which they're suing???

Yes, they did include attorney fees. $300.

Edited by Mteezy

Share this post


Link to post
Share on other sites

Plaintiff's First Request For Admissions To Defendant:

1. Admit or deny that the Defendant entered into an agreement(hereinafter referred to as the "agreement") with XXX, whereby XXX issued a credit card to Defendant creating a revolving line of credit on an open account on which Defendant could make purchases at certain retail establishments.

2. Admit or deny that for good and valuable consideration the account was subsequently assigned to the Plaintiff making the Plaintiff the holder of the account.

3. Admit or deny that the agreement provides that the Defendant will repay funds advanced through the account, plus interest to the holder of the account.

4. Admit or deny that pursuant to the agreement, the Defendant and/or the authorized user made purchases and/or cash advances on the account, the balance of which has gone unpaid and is now delinquent thereby putting the Defendant in default.

5. Admit or deny that current principal balance due on the account is $XXXX.

6. Admit or deny that the Statments attached hereto and incorporated herein as Exhibit "A" are true and accurate statements of the Defendant's account.

7. Admit or deny that the agreement provides that in the event of the Defendant's default, the Defendant agrees to pay all collection costs, including reasonable attorney's fees.

8. Admit or deny that the Defendant has no legal defense(s) to this action.

Is this the same as a "Discovery Request"? Exhibit "A" is the copies of the account statements.

Share this post


Link to post
Share on other sites
Ok...this will help you in writing your Opposition to Motion for Summary Judgment. You need to find cases in which Midland (or any JDB) filed for MSJ but the defendant fought back.

Go to the court's website. Civil cases are public record online. Your need to search in the circuit court. When you get to the search page...write in Midland Credit. All the cases for Midland will come up. Click on any case that is "dismissed" or "pending".

If the case pending and an MSJ has been filed...see if the Defendant is represented by an attorney. If the attorney has filed an opposition or objection...write down the case number.

If the case is dismissed...it could be for several reasons. The JDB just dropped it for no apparent reason...or the case was settled...or the JDB filed an MSJ but the Defendant filed an opposition and won. If the MSJ was denied and then the case was dismissed ...it doesn't matter if the defendant was represented by an attorney or not. Whoever wrote the Opposition did a good job.

Any case that shows an Opposition or Objection to MSJ and Midland's MSJ was denied OR Midland dropped the case...write down the case number.

Take the case numbers to your courthouse and look up the files. Make copies of the Oppositions. They will show you the format AND possibly have some more case law you can use.

If you can't find any cases under Midland for oppositions to MSJ...search other JDB cases.

1. LVNV

2. Capital Management

3. Unifund CCR

4. Cavalry Portolio

5. Asset Acceptance

This could take a while but it will be worth it to prepare your opposition. Don't forget to call an attorney and get some advice.

Did Midland include attorney fees in the amount for which they're suing???

I only found 1 case for Midland Credit where it looks like they filed the case and didn't take it any further. No dispostion was stated and the status says active. I found a horde of LVNV cases that were disposed of so that's where I'm currently researching. Thanks once again.88-)

I'm beginning to see that almost all the dispositons won by LVNV were cases where they won by default judgement. Out of the 10 dismissals I've read so far, neither defendant had an attorney. Almost all the "Dismissals" I see were won by Rule 41(A). Rule 41(a) states the following:

a) Voluntary Dismissal: Effect Thereof.

(1) By Plaintiff; By Stipulation. Subject to the provisions of Rule 23©, of Rule 66(a), and of any statute, an action may be dismissed by the plaintiff without order of court (A) by filing and serving a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs, or (B) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

(2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

Still digging.:)++

Beginning to find that many cases were dismissed after "Notifice of Roster Publication Sent":eek: Also found a lawyer that represented a defendant. I'll have to give a call.:rolleyes:

Edited by Mteezy

Share this post


Link to post
Share on other sites

You said they sent you some account history? What what exactly was it?

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.