Defendant w/ disability vs Midland

[RetiredHoosier]

First I would like to thank everyone for their contributions to this wonderful site. I have read numerous threads about Midland Funding, but I must say I haven't come across a case as unique as mine. I welcome any input on how to handle this in the courtroom. We live in Indiana.

Midland issued summons to my wife for past CC debt with an affidavit signed by C. Bowman employee of MCM. The affidavit was not notarized and included with summons was affidavit of non-military service, no other documents have been filed. I am NOT co-signer of said debt.

Filed appearance notice and motion to strike affidavit as hearsay but motion was denied, hearing set for 04/01/2011.

Now, here is my situation and question:

My wife had suffered numerous illness's up to and including a stroke, which she suffers some memory loss. This is all documented with the SSA and states this as fact in her SSA court hearing.

Is there any brief I can file prior to or at hearing so the judge may see that my wife has a legit disability and hope Midland will back down.

She has no knowledge of such debt anyway and I can prove her insolvency during most of the time frame of the alleged debt. AND if I am correct her SS disability check is not attachable anyway.

Again I want to thank everyone for their contributions to this site. Very informative and I have learned alot.

[chiquita55]

Your wife's disability makes absolutely no difference in this lawsuit. Disability is NOT a defense to a debt. You will have to find another defense to the debt. I don't know where you live but in California a creditor can come after a spouse for the other spouse's debt. Community property laws etc but if your name is not on the debt I would check with an attorney in your area and see if they can come after YOU. If they can't your wife is probably judgment proof but if they can come after you for the debt then they could garnish your wages, put a lien against your home. If your wife's name is on your home they may be able to do that now or any other assets her name may be on. Calif is a community property state where half of everything belongs to each spouse.

Again, a disability is no defense for a lawsuit. Either you need to find a legimate defense (show the debt isn't hers) or hope they can't prove it is hers or try to strike up a deal to pay the debt or lower the amount of the debt.

[Linda7]

Indiana is not a community property state. Because it is not a community property state, you will be responsible for your spouse's debts "only" if you voluntarily assumed those debts by, for example, co-signing on a loan given to your spouse. In a non-community property state, one spouse can file for bankruptcy and be eligible to eliminate all of their unsecured debts without the involvement of the other spouse.

Her social security cannot be garnished, but make sure that you don't have a joint checking account as they will seize everything in the account if money is co-mingled. If she has a separate account and only has her social security deposit in there, then you will be able to prove that only social security funds are deposited into that account and they cannot touch them. However, if you have ever made any other kind of deposit into the account - the funds can be taken.

If there is a judgment against her, it can be there for 20 years with them tacking on interest. However, note that she could file BK separately from you to get out from under any judgments or creditors if they are included in her BK.

About the debt itself, you didn't post information in regard to it. Could there be a possibility that it is beyond SOL? Also, what is the ballpark amount they are wanting to collect? Do you know when the alleged account was opened and when was the supposed year of default? If you don't know, check on her credit report and let us know.

Edited March 19, 2011 by Linda7

[BV80]

RetiredHoosier,

When did you receive the summons? Check your court's Rules of Civil Procedure to see if you are still within the time frame to send discovery requests. And, as Linda stated, also check the SOL on the debt.

[RetiredHoosier]

Said debt opened 2006 last payment 2009 amount is 1028.05 OC Chase Bank USA. summons was served March 2, 2011.

Credit report:

Chase Bank closed on June 2010 for $499

MCM entered debt on Feb 2011 for $1028.05

Anyway didn't think disability was a defense but rather to make court aware that undo stress could cause a stroke or heart attack. She is at such a brittle stage that any stress would probably send her to the ER.

Not only is her SSA check deposited to a joint acct. I am retired military and my pension is deposited to same acct. Govt pensions cannot be attached either. Am I correct on this?

Would like to smack down the affidavit. The person who signed the affidavit swears to be an employee of MCM, but and online resume says different. Look below.

Carina Bowman's Summary

I graduated from the MInnesota School of Business in September of 2009. I am currently working at Encore Capital as a Legal Spe******t. My hope is to start working in the criminal law field or family law field. I am really interested in researching legal issues. I like to find the answer to the question, whatever it may be. I also like drafting different legal documents, whether it is a complaint or just a memorandum. I would like to work in a law firm where I can be challenged and where I can grow wthin the legal field.

Specialties

Notary Commission

Carina Bowman's Experience

Legal Spe******t

Encore Capital

Public Company; Legal Services industry

November 2009 – Present (1 year 5 months)

Read and validate affidavits, notarize, look for ways to improve processes as this is a brand new position.

Crew Member

Taco Johns

Privately Held; Food & Beverages industry

February 2009 – November 2009 (10 months)

Take and prepare customers' orders, maintain a high level of accuracy and efficiency in serving customers

Cashier

Petters Warehouse Direct

Consumer Goods industry

June 2008 – October 2008 (5 months)

Assist customers and keep clothing and other items in neat order to ensure a great shopping experience for customers.

Carina Bowman's Education

Minnesota School of Business

2005 – 2009

Thanks for all the inputs.

[rikkivs]

As other poster pointed out, they cannot take any monies from SSI, disability or any other federal, county or state funds given to your wife for her disabilities. Also, you might need to look into assuming some legal responsibilities for her if she's that fragile. I saw a case where an elderly lady was sued over a defaulted account and they tried to tie up her money even though she had an attorney write a letter to the plaintiffs telling them that her money was ssi only and thus could not be attached. Well the plaintiffs weren't backing down and the judge ripped them a new one and made them give her money back. If you document your wife's condition AND show where her funds are from, they should nonsuit the case. There is ample precedent that in these types of situations if suing the person will cause undue stress and cause injury to their health then YOU can accrue a cause of action against them! Answer the suit and write a letter addressed to the court and to the plaintiff attorney. Format the letter as a declaration and have it notarized as an affidavit stating your wives condition. Do a motion to dismiss. If they pursue the case given her level of physical fragility, they open themselves up to a countersuit. Again they cannot attach her ssi money so what is the point of filing the suit?

[BV80]

RetiredHoosier,

Notary Commission

Carina Bowman's Experience

Legal Spe******t

Encore Capital

Midland is part of Encore Capital. The judge has already denied your motion to strike the affidavit. If your rules of civil procedure still allow, you need to request discovery. If they provide a bill of sale, it will not have your wife's name or account number on it. If they provide statements, read the following:

Indiana Rules of Evidence

Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial

(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. The term “business” as used in this Rule includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.The above states that a record they provide must be from:

1. A person with personal knowledge of the record

No one from Midland has personal knowledge of any records of the OC.

2. If it was the regular business activity to MAKE the record

It's not Midland's regular course of business to create credit card statements. The OC created those statements.

3. Accompanied by the testimony of the custodian of the record or other qualified witness.[/I]

If Midland provides some copies of credit card statements, according to the rule above, they would have to provide a testimony from the custodian of those statements, which would be an employee of the OC, verifying the authenticity of the statements.

[RetiredHoosier]

Format the letter as a declaration and have it notarized as an affidavit stating your wives condition. Do a motion to dismiss. If they pursue the case given her level of physical fragility, they open themselves up to a countersuit. Again they cannot attach her ssi money so what is the point of filing the suit?

Thank you... This seems reasonable to me. Would following format be ok?

STATE OF INDIANA ) IN THE xxxxxxxx SUPERIOR COURT II SMALL CLAIMS

) SS:

COUNTY OF xxxxxxxxxx ) CAUSE NUMBER: xxxxxxxxxxxxxx

MIDLAND FUNDING LLC AS ASSIGNEE OF CHASE BANK USA, N.A.

Plantiff

-VS-

Defendant(s)

AFFIDAVIT OF (defendant name)

Now comes the defendant, and states:

I humbly ask the court to recognize my current health status and grant me some leniency in this hearing.

I believe that my medically determinable impairments could reasonably be expected to produce symptoms that may jeopardize my health and that the intensity , persistence and limiting effects of these symptoms are credible.

I declare that I am seeking continued treatment for the following impairments: diabetes, diabetic neuropathy, dibetic retinopathy, stage III nephropathy, congestive heart failure, high blood pressure, and residuals of stroke.

____________________________________

defendant

STATE OF INDIANA, COUNTY OF xxxxxxxx, ss:

This affidavit was acknowledged before me on this ______ day of ___________________,

by defendant, who, being first duly sworn on oath according to law, deposes and says that she has read the foregoing Affidavit subcribed by her, and that the matters stated herein are true to the best of her information, knowledge and belief.

_____________________________________

Notary Public

_____________________________________

Title

My commission expires ___________________

[chiquita55]

Please let me know if that letter does any good in Indiana. I am in California and am in a similar situation. When I filled out the answer to the summons I put a bit of disability info in a spot that said 'other' on the form. I don't think the judge will take much note of it but figured it couldn't hurt to tell them. Being disabled is not a legal defense but I am curious if it will help get the suit dismissed. Let me know.

[Guest usctrojanalum]

As other poster pointed out, they cannot take any monies from SSI, disability or any other federal, county or state funds given to your wife for her disabilities. Also, you might need to look into assuming some legal responsibilities for her if she's that fragile. I saw a case where an elderly lady was sued over a defaulted account and they tried to tie up her money even though she had an attorney write a letter to the plaintiffs telling them that her money was ssi only and thus could not be attached. Well the plaintiffs weren't backing down and the judge ripped them a new one and made them give her money back. If you document your wife's condition AND show where her funds are from, they should nonsuit the case. There is ample precedent that in these types of situations if suing the person will cause undue stress and cause injury to their health then YOU can accrue a cause of action against them! Answer the suit and write a letter addressed to the court and to the plaintiff attorney. Format the letter as a declaration and have it notarized as an affidavit stating your wives condition. Do a motion to dismiss. If they pursue the case given her level of physical fragility, they open themselves up to a countersuit. Again they cannot attach her ssi money so what is the point of filing the suit?

I sympathize with the OP's position and all, but none of this is true. Just because people are sick and disabled is not an affirmative defense to a civil lawsuit. And because a plaintiff will still pursue their claims after finding out someone is sick and disabled does not open them up to a countersuit.

Yeah, we want it to be that way because it is midland, but would you feel the same way if the suit in question was for negligence because the the defendant was driving drunk and killed a teenage girl? Would you then say the plaintiff is ripe for a countersuit because they still decided to pursue their claims after finding out the defendant is disabled?

[Guest usctrojanalum]

Again they cannot attach her ssi money so what is the point of filing the suit?

OP is never going to have an inheritance? That is not exempt. OP is not a beneficiary on any life insurance policies? Those monies are not exempt either. Judgment proof now does not mean judgment proof forever.

[RetiredHoosier]

I sympathize with the OP's position and all, but none of this is true. Just because people are sick and disabled is not an affirmative defense to a civil lawsuit. And because a plaintiff will still pursue their claims after finding out someone is sick and disabled does not open them up to a countersuit.

Yeah, we want it to be that way because it is midland, but would you feel the same way if the suit in question was for negligence because the the defendant was driving drunk and killed a teenage girl? Would you then say the plaintiff is ripe for a countersuit because they still decided to pursue their claims after finding out the defendant is disabled?

Point taken...Didn't want to use as defense but rather I don't want to see her harassed either. I'm going to file Cease & Desist along with request of production of records. Would it hurt to also file the affidavit I mentioned?

Thanks to everyone who is helping,

[BV80]

I'm going to file Cease & Desist along with request of production of records.

A cease and desist for what?

[chiquita55]

There is no cease and desist you can file. Your wife has been sued. She or you or someone has to answer the summons or she will get a judgment against her. It will be on her credit and if she is married I assume it would be on your credit report too. If you don't fight the suit and win then they will get the judgement. So the first thing to do is answer the lawsuit to the court. This will all take place in a court of law, not with the creditor. You need to find a legal defense, or if it is all just too much for you and your wife just let them have the default judgement. Unless you can work out a payment plan with them you most likely will get the judgement anyway unless you have another defense than disability. They can put a lien against your home etc etc. if she is on the title.

[BV80]

Unless you can work out a payment plan with them you most likely will get the judgement anyway unless you have another defense than disability.

It's Midland. They've got a defense.

[RetiredHoosier]

I'm not using a disability as a defense, just want to make court and plaintiff aware of her fragility. Just showing up for the hearing is enough to answer the summons, which we plan to do. This is not a community property state so they can't attach anything to me and she has NO tangible assets. Worst that could happen is it goes to summary on 1st hearing right! I can and will fight this.

[lheart]

Be careful not to put yourself in a position of openly committing Unlicensed Practice of Law. While none of this seems fair, a lawyer would need to represent her in court, you cannot actively advocate for her. There are some things you can do behind the scenes, but understand at some point she will need to show and represent herself, unless you retain an attorney. Good luck with all of this.

[Prosay]

Google this "Court tosses debt collector's suit"

This may be helpful also:

REQUEST A "BILL OF SALE" and a properly prepared ,executed , signed and authenticated document showing proof of assignment"

Request a complete document showing "chain of title" and proof that each entity in THAT CHAIN HAD LEGAL STANDING IN THIS MATTER.

Request proof that Midland is the legal owner of this alleged debt, and demand proof of how much they paid for the debt( Valuable consideration paid for the debt)

Demand that Midland show proof that any information they have was based on "personal and first hand knowledge", otherwise it is conjecture and "hearsay"...AND WON'T STAND UP IN COURT.

Talk to an attorney and have them prepare a document showing all of your exempt assets, personal and homestead, in accordance with your states bankruptcy code. I know for a fact that social security and military disability are exempt from levy...not sure about pensions however.

Your attorney should prepare this document for much less than filing bankruptcy, and it will serve the same purpose IN PROTECTING YOUR EXEMPT ASSETS. BUT YOU MUST FILE A COPY WITH THE COURT CLERK, who will sign , stamp and enter it into the file, and also send a copy to the plaintiff's attorney ( check your summons for time frames)

Your attorney can explain this procedure for you..

Talk to your banker and advise them to "FLAG YOUR BANK ACCOUNT" in as much as your income is exempt from levy.

Even if a judgment is entered against your wife, it's on record they cannot grab anything which is exempt !

Lot's of people in here have gone up against Midland with success, AND I WISH YOU THE BEST !

Edited March 20, 2011 by Prosay

[rikkivs]

You have mischaracterized what I wrote. Not once did I say that disability was an affirmative defense to a lawsuit. I advised OP to make sure to answer the suit but also to fire up a declaration/affidavit showing the finances of his wife and perhaps even take legal responsibility for her given her fragile state. And yes given all of this, a motion to dismiss makes sense. According to what he wrote, she is very bad off physically and in fact if her only income is non attachable and she's in poor health I repeat it does NOT make sense to continue litigating this case. And just do some research on elderly people, credit card suits and non attachable sources of income. While you're right that if OP gets other monies then they could be seized, it makes more sense for the creditors to work out an amicable settlement plan (PROVIDED THE DEBT IS LEGITIMATE considering the OP has no memory of it). AND if the Plaintiff was notified about the fact that Defendant is in poor mental and physical health and has no memory of the debt, any reasonable litigator would try to either work something out with the Defendant, dismiss the case without prejudice or PROVE up the damages.

And Pro Say is right here, the OP should get a financial statement together and show that they cannot get her monies!

[BV80]

I'm not using a disability as a defense, just want to make court and plaintiff aware of her fragility. Just showing up for the hearing is enough to answer the summons, which we plan to do. This is not a community property state so they can't attach anything to me and she has NO tangible assets. Worst that could happen is it goes to summary on 1st hearing right! I can and will fight this.

Read your Court's Rules of Civil Procedure. Find out when you're allowed to ask for discovery. When allowed you'll ask for a bill of sale, an accounting of the debt including all charges, payments, interest, and fees.

As I posted previously, they must have proof of the authenticity of any credit card statements they send you. If the cc statements do not comply with the rule, they are hearsay.

[BV80]

Request a complete document showing "chain of title" and proof that each entity in THAT CHAIN HAD LEGAL STANDING IN THIS MATTER.

If Midland is the only Plaintiff, it's not necessary for each entity to prove standing, because each entity is not suing. It is only the Plaintiff who must prove standing.

Talk to your banker and advise them to "FLAG YOUR BANK ACCOUNT" in as much as your income is exempt from levy.

That would only be necessary if a judgment is awarded to Midland. There's been no judgment yet.

[Prosay]

If Midland is the only Plaintiff, it's not necessary for each entity to prove standing, because each entity is not suing. It is only the Plaintiff who must prove standing.

I disagree somewhat with your statement. If Midland purchased this alleged account from some other JDB, then it's imperative that it be shown that the other JDB in fact had legal title and therefore the right to sell the account to MIDLAND. Challenge everything !!

That would only be necessary if a judgment is awarded to Midland. There's been no judgment yet.

BUT...I endorse protecting one's bank account BEFORE THE FACT, just by advising your banker of the ONLY SOURCE OF FUNDS in your bank account...get it on record NOW before any surprises comes your way !

JDB's have been known to try for summary judgments without the defendant even knowing a lawsuit has been filed. Besides, your banker doesn't even have to know why you are asking for your account to be flagged !

Why not go for a "pre-emptive strike".

I have never been faced with a problem of this nature, but I understand that it can be burdensome to get your bank account "unfrozen" when such an event occurs.

[BV80]

You stated "legal standing". That's the right to bring a suit, and that's why I misunderstood you.

If Midland purchased this alleged account from some other JDB, then it's imperative that it be shown that the other JDB in fact had legal title and therefore the right to sell the account to MIDLAND. Challenge everything !!

You can challenge it, but if Midland can't prove they bought the account, their standing to sue is out the window anyway.

[Prosay]

You stated "legal standing". That's the right to bring a suit, and that's why I misunderstood you.

You can challenge it, but if Midland can't prove they bought the account, their standing to sue is out the window anyway.

EXACTLY !...also you can demand proof proof of "valuable consideration paid" for the account in order for them to prove "actual injury", as I have recently posted. A HYPOTHETICAL INJURY or an injury based on mere CONJECTURE as is usually stated in a JDB dunning letter OR SUIT proves absolutely nothing. Make them prove the actual amount paid for the account,,,and then use the defense of "UNJUST ENRICHMENT"....as the amount paid is only a very small fraction of " the claim for which relief is sought". Having said that, You can claim that " A LEGITIMATE CLAIM FOR WHICH RELIEF IS SOUGHT HAS NOT BEEN DEMONSTRATED "....AND IF THEY ARE DEMANDING MORE THAN THEY ACTUALLY PAID,( CLAIMING AN INJURY WHICH HASN'T OCCURRED, or attempting to "unjustly enrich themselves) and have in fact stated as such in WRITING to you, IS THAT NOT FRAUDULENT ? And if so, have they not violated FEDERAL LAW (US CODE TILE 18 CHAPTER 63 COLLECTIONS ( FRAUD AND SWINDLES)....and having said this, if they sue, can this be construed as "COMMITTING FRAUD UPON THE COURT" ??

I have found that if you bring all of this to the attention of a JDB upon receiving an initial dunning letter, they will just disappear...thinking "what the **** ! "Maybe we need to back off...this guy is definitely not "A LEAST SOPHISTICATED CONSUMER" !!!

I ENCOURAGE EVERYONE TO BE PROACTIVE AND USE A PRE-EMPTIVE APPROACH.....THIS WILL GO ALONG WAY IN PREVENTING A LAWSUIT

NOTE: IF ANY OF OUR MEMBERS ARE "TROLLS", please review this, and take it to your JDB Ceo AND Managers...let them know that many of us are NOT "LEAST SOPHISTICATED CONSUMERS"...and WHEN YOU SEND OUT YOUR BOGUS LETTERS WITH YOUR BOGUS CLAIMS, you will be CHALLENGED, and YOU will either "PROVE IT or you can SHOVE IT"....and THE COST OF THE VASELINE WILL BE PAST ON TO YOUR FIRM !!!!

[BV80]

also you can demand proof proof of "valuable consideration paid" for the account in order for them to prove "actual injury", as I have recently posted.

My state does not have such a statute. Not all states do.