oakenshield

Judgment issued despite filing a motion to dismiss with supporting legal arguments.

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On January 8th I was served by Midland Funding who filed a Complaint against me for alleged credit card debt that they purchased. I responded with the following.

REQUEST FOR DISMISSAL OF COMPLAINT

Comes now the Defendant, xxxxxxxxx, pro se, and files this request for dismissal of complaint as follows:

1. The complaint fails to state a claim against defendant upon which relief can be granted. Plaintiff's Complaint fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

2. Defendant received the Plaintiff's Complaint on or about January 8, 2011. Defendant answered the complaint on or about January 11, 2011.

3. The action is time-barred under KRS 413.120 “Actions to be brought within 5 years”. The plaintiff has failed to provide an itemized statement showing the most recent activity on the account.

4. The Plaintiff has failed to provide any contract, an agreement bearing the signature of the Defendant or any itemized statements or billing of said debts which would constitute intimate knowledge of the creation of the debt. If such documents were available, a purchasing/assignee’s plaintiff would be unable to swear to the authenticity of the originating or source documents of a credit transaction because they do not have personal knowledge of the events which transpired at that period of time in the life of the credit agreement. The original cardholder agreement, any correspondence, and monthly statements issued by the original credit grantor are not admissible as the purchasing plaintiff's business records, as the purchasing plaintiff has no personal knowledge of how those records were created or maintained.

5. Plaintiff has failed to provide a detailed list of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidence by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on plaintiff to collect debt.

WHEREFORE, Defendant, xxxxxxx, respectfully requests that the court should dismiss and deny the Plaintiff’s Complaint filed herein Midland Funding LLC and prays for dismissal of the Complaint by the Plaintiff.

On Feb. 10th I recieved a request for default judgment citing a failure to respond (I had hand delivered the motion to the courthouse on January 11th and sent a copy via US mail to their attorney.) I called the attourney for the Plaintiff and faxed them a copy of the motion to dismiss.

I assumed that the court would either grant my motion since the Plaintiff failed to file any response to my motion (other than denying they got anything) or (more likely) set a hearing.

Well Today, March 31 I get a notice of judgment lien on real estate (good thing I dont own any). I found out after a phone call that the judge signed off on their request for default judgment on Feb. 15th! Neither the court nor the Plaintiff's attourney notified me of the default judgment.

So, Should I have filed some sort of "look in the filing cabinet, I did file a response" response to prevent the default judgment? Did the judge even take a second to look in the case file before signing off on the default judgment? More importantly now, will the judge set aside the default judgment... 45 days after the fact since I just now found out about it.

Here is what I cobbled together for a possible next filing:

MOTION TO SET ASIDE DEFAULT JUDGMENT

Comes now the Defendant, xxxxxxxxx, pro se, and files this motion to set aside default judgment and certifies as follows:

1. Defendant received the Plaintiff's Complaint on or about January 8, 2011.

2. Defendant answered the complaint on or about January 11, 2011 by filing a Motion to dismiss citing valid legal reasons for the Complaint to be dismissed. Motion was filed with the court and sent to the Plaintiff by US mail.

3. Plaintiff filed a motion for default judgment on or about January 31, 2011 stating “The Plaintiff moves the Court for a Default Judgment against the Defendant for the reason that the time within which the Defendant may answer… has expired.”

4. Defendant received a copy of the motion for default judgment on February 10th, 2011 and contacted a representative of the Plaintiff by telephone. Defendant notified the Plaintiff of the response filed with the court and faxed a copy of the response. Plaintiff’s Representative verified receipt of the fax.

5. Defendant believed that since a response was filed with the court within the time to answer and the Defendant was in receipt of said response that no further action was needed and a hearing would be scheduled in the case and notice of said hearing would be forthcoming.

6. A Default Judgment was entered against the defendant on or about February 15, 2011.

7. Defendant did not receive any notice of the Judgment from the Plaintiff or the Court and was not made aware of said Judgment until receiving a NOTICE OF JUDGMENT LIEN ON REAL ESTATE from the Plaintiff on March 31, 2011.

WHEREFORE, Defendant, xxxxxxx, respectfully requests that the court should set aside the Default Judgment entered in this Case and, considering the arguments set forth in the Defendant's Request for dismissal of Complaint; filed January 11, 2011, dismiss and deny the original complaint filed herein, Midland Funding LLC and prays for dismissal of the Complaint by the Plaintiff.

And one last Question, if we get a hearing on the matter and the judge won't dismiss, Is it true that since I am in KY I can find out how much they paid for the debt and limit any award to that amount?

Sorry for the long post, I am a little wound up at the moment.

Thanks for your response

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I added this to my yet to be finalized filing. I may need to weed out some stuff. Do judges despise long filings?

7. Plaintiff’s Complaint failed to prove that the Defendant owed the debt; No documents bearing the signature of the Defendant were produced.

8. Pursuant to KRS 371.050 Assignee to aver consideration -- Amount recoverable. “In an action on any assignment of writing, the consideration for the assignment shall be averred. The plaintiff shall recover no more than the consideration actually paid by him for the note or assignment.” Plaintiff is a Junk debt buyer. Plaintiff’s Complaint and Default Judgment entered is for the amount of the original debt plus interest and court fees and is in grossly in excess of the amount paid for the debt by the plaintiff. Default Judgment entered was therefore in violation of KRS 371.050. Defendant did not have the opportunity to present this defense since a hearing was not scheduled.

9. Counsel for the Plaintiff allowed the court to proceed with issuing Default Judgment in the case with full knowledge that the claims made in the Request for Default Judgment were false at the time and that the Defendant had in fact filed a response, which is especially egregious in a pro se case.

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I can give you some insight on where you probably went wrong here but I am not sure if it is fixable, the scumbags at Midland have taken advantage of the fact that you appear to know as little as I did about the court system as I did before I started researching on this site and others. The thing is I started researching how things work before I even had a suit filed against me so I was ready and educated by the time the suit was filed and you seem to not have had the chance to or decided not to do the same.

Midland always tries to throw anything up on a wall as a reason for the case to be resolved without trial. You claim to have filed a anwser to their complaint (suit) with the court, what you have provided here seems to be a good anwser.

From what I can gather from what you wrote, they filed for a motion for default judgement against you despite your filing the anwser.

Did you attend the hearing for that motion, I assume what they sent you had a court date set for the motion?? You don't describe your doing that, if you didn't attend the hearing the SOB's probably was awarded a default right then and there.

You do need to request a court date for any motion you file with the court, I found that out by experiance, they won't set a date and it will just sit there.

If you wrote an opposition to there motion as you seem to have done, that was great, but you needed to attend the hearing, like I said the scumbags got the default by your not showing up.

KRS 371.050 is a state statute that clearly states that an assignee of a debt cannot collect more than they paid for the debt, but if you did not contest their default judgement request at the hearing, again that is a cardinal sin not to show up. I also listed the statute as a affirmative defense, you probably should have to.

From what you have wrote it seems that these scumbags have been awarded damages even though you filed an anwser and disputed their claim, the judge gave them a judgement because you failed to show for the hearing and they didn't have to prove a thing. That is how Midland does business, preying on people who are not familiar with the process.

Others might be able to assist relative to helping you get the default judgement removed, but from what I have read it can be hard unless proper service of the suit was not executed, which in your case you couldn't use that as a reason.

Good luck and what happened to you should not be allowed to transpire, Midland and all of these other scumsuckers should only be awarded judgements if they can prove their claim and not because they can get one over on a person unfamilar with the system.

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The clerk I talked to said there was no hearing, no date set, the judge just signed off on their request for default judgment. That is why I am filing a motion to set aside the default judgment. I was ready and waiting to be notified about a hearing... waiting... and then I find out about the default judgment 45 days after the fact.

In summary,

1. they filed a complaint

2. I answered with a motion to dismiss siting valid legal arguments that would demand a hearing.

3. They filed a motion for default judgment stating that I never responded.

4. The judge (apparently not looking an further than the document laying on his desk) signed their motion without a hearing or court date ever being set.

5. The court clerk said they dont always send a copy of the judgment to the defendant, they let the plaintiff do it. so they left it up to Midland's lawyer to notify me of the judgment which they never did... I only found out about it when they filed a real estate lien.

6. I am pissed and filing a motion to set aside the judgment because i never got my chance to defend.

Edited by oakenshield
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Oh, by the way I successfully filed a chapter 7 pro se several years ago so I am not entirely new to this stuff... I might have erred by not responding to their motion for default judgment with a motion to check your mailbox and go to hell, but the court erred by completely ignoring my motion.

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KRS 371.050 is a Statue of Frauds provision. If I may, as I am a new poster here, I believe what has happened is the Motion to Dismiss failed to act as a pleading to the Complaint. Civil Procedure requires an answer to the complaint, e.g. admit or deny the debt, and the stating of affirmative defenses such as KRS 371.050.

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That could be what happened too. I wasn't sure because in NY you are allowed to answer a complaint with a motion to dismiss. I didn't want to jump in and say are you sure a MTD was a proper response to their pleading? That could be an explanation as to what happened.

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I recieved a copy of the default judgment today. It reads:

"This cause having come for hearing upon Motion of the Plaintiff for a Default Judgment herin, and it appearing to the Court that the Defendant, having been duly summoned, has failed to answer or otherwise plead within the time prescribed by law, and appearing from the Affidavit filed in support of Plaintiff's Motion that the Defendant is not in the military service of the United States.

It is Ordered and Adjudged..."

This document was drawn up and presented to the judge by Midland's lawyer. And the judge apparently just signed it. They are saying I didn't respond AT ALL. "It appearing to the court..." my a$$. The court never looked at the case files to see if I filed a response. I am sitting here with the default judgment sitting right next to my motion to dismiss (with a giant court stamp on it saying "FILED JAN 10 2011"). I am so pissed about this, can anyone offer any help filing a countersuit. GRRRR:evil:

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You might try a motion to vacate or set aside the order stating CR 60.02 and argue you must of misunderstood CR 20.02 and thought your motion to dismiss would be set for hearing or ruled and would cause the delay in your pleading. Just a thought.

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local rules state that all motions filed will be placed on the motion docket, "on call of the motion docket, the court shall either rule on the motion, set it for a day to be heard, or continue it to the following motion day."

I recieved no ruling on my motion, and no date was set for a hearing.... so it's either been continued indefinitely or I got screwed somewhere.

also if i call for it to be set aside I will cite professional misconduct on the part of their attorney from the KY Bar Association code of ethics not CR 60.02:

SCR 3.130(3.3) “(a) A lawyer shall not knowingly: (1) … fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.”

they did this by not correcting or withdrawing their Motion for Default Judgment which falsely stated that they had not received any papers from me and by not withdrawing their Default Judgment Order which falsely stated “Defendant…has failed to file answer or otherwise plead within the time prescribed by law.” 4 days time (2 business days) elapsed between when I notified them that their filing made false statements and the signing of the Default Judgment Order (an ex parte proceeding). This caused the judge in the case to unknowingly violate rules of judicial conduct and/or law that would require him to consider my response and schedule a hearing.

The Supreme Court Commentary on SCR 3.130(3.3) states

“(2)…although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.” Additionally, the Commentary states “(10) Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false… the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation”

Later it states that this obligation persists until the case is finalized on appeal! I may see if I can get thier attorney to file to set aside the judgment on her own... a Formal, well documented ethics complaint with the Bar is not worth the measly amount they will get If I get a hearing or Appeal the judgment.

Edited by oakenshield
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Didi you serve the other side with a copy of the motion? Did you certify this service to the court when you hand delivered yours? Do you have a receipt from the clerk? If you answered no to any of these, the court probably ignored your papers which, frankly, don't amount to a defense.

I know even a blind chicken scratches some feed, but I never want to be that chicken. You might want to get legal help at this point.

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371.050 Assignee to aver consideration -- Amount recoverable.

In an action on any assignment of a writing, the consideration for the assignment shall be averred. The plaintiff shall recover no more than the consideration actually paid by him for the note or assignment.

Effective: October 1, 1942

History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 475.

KRS 371.050 is a Statue of Frauds provision. If I may, as I am a new poster here, I believe what has happened is the Motion to Dismiss failed to act as a pleading to the Complaint. Civil Procedure requires an answer to the complaint, e.g. admit or deny the debt, and the stating of affirmative defenses such as KRS 371.050.
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371.050 Assignee to aver consideration -- Amount recoverable.

In an action on any assignment of a writing, the consideration for the assignment shall be averred. The plaintiff shall recover no more than the consideration actually paid by him for the note or assignment.

Effective: October 1, 1942

History: Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942, from Ky. Stat. sec. 475.

371.010 Statute of frauds -- Contracts to be written.

No action shall be brought to charge any person:

(9) Upon any promise, contract, agreement, undertaking, or commitment to loan money, to grant, extend, or renew credit, or make any financial accommodation to establish or assist a business enterprise or an existing business enterprise including, but not limited to the purchase of realty or real property, but this subsection shall not apply to agreements pursuant to which credit is extended by means of a credit card or similar device, or to consumer credit transactions;

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To overcome the credit card exemption the argument has to be made that the sale of the credit card debt to a JDB shifts the claim from a credit card to a consumer debt, in line with the supplier of goods or services. There is case law that has been ruled on this very subject.

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Yeah it sounds like you didn't file an actual anwser, just a motion to dismiss. That should have come after the anwser. Still just a typical rotten practice of the JDB's and the particular courts that seem toi streamline everything for them. They may have had an argument for a judgement because technically you didn't file a response, but you did obviously dispute them. It would be nice if the stupid judge would have held them to some sort of standard as well, like produce evidence to back their claim other than a sheet of paper.

Debtfighter---- I have read the KRS 371.050 statute online, on a state website no less, and I never caught that (9) subpoint or whatever it can be called. Never read anything about a credit card being an exception. Geeze, that statute is my ace in the hole if all other defenses are proven ineffective.

Could you provide the case law that proves that cases have been ruled to be consumer debt after being sold, which preserves the statute as a relevant defense?? No hurry at all on that, for me anyway, as the idiots suing me have not sent back any documentation to prove their case in over four months time so no trial is eminent but I would like to have it just in case anything happens and it does go to trial.

Seeing as credit cards didn't exist back in 1942, it is obvious the scum from that industry did some padding of the pockets of the politicians here to get that exemption. Again, I have not seen that (9) attachment anywhere before you cited it in your post.

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I still don't see how that can be interpreted in any other way, I am sorry, except by the corrupt nature of the system that just does what they want and ignores their own laws. You cited a different statute, 371.010 not 371.050.

Its simply written, only the corrupt cads that run this system could complicate it, JDB pays for a debt, they cannot collect more than they paid for it (shall recover no more than the consideration actually paid by him for the note or assignment) simple as that for an honest man to comprehend.

Not to say they won't just ignore it, all a law is is something written down on a piece of paper, just like the Constitution which is also routinely ignored, "laws" really don't even exist, they are a fiction really, but it is clear to anyone with a brainpan of a collie what is written down there.

Don't take my comments as critical toward you debtfighter as I am interested in the case law you refered to.

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I will see if I can find the case law on that. I am sure it came from a link from this site. I need it myself. I have 2 cases going on. One is almost a year old with Captial One the OC and the other my wife got served on 1-10-11 and is just starting. The lawyer is in for a rude awakening.

The case with Capital One I have motioned for leave of the court to amend my response and file a counterclaim and enjoin a third-party. I already defeated their MSJ and answered their discovery. They partially answered my discovery last week after 120 days. I have learned a lot since this started.

The case with Midland should be interesting. I know the affiant is not with MCM now and the complaint was like a gradeschooler did it. Strangely enough it came from Capital One also. This one is in Circuit Court the other is District.

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fightemdontfold I found the case. It is in the Midland Funding vs Brent on page 25 and 26 6th circuit. Debt buyers are suppliers. Also did you see Minnisotta filed suit against midland for robo signing?

Edited by debtfighter
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You cited a different statute, 371.010 not 371.050.

Exactly- statute of frauds(KRS 371.010) exempts CC (And similar) debt,

KRS 371.050 Assignee to aver consideration -- Amount recoverable. DOES NOT......

STILL when a JDB buys a portfolio of alleged debts at pennies on the $ , they're not buying CC debt anyway, (it was charged off)

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KRS Chapter 371 is the Statue of Frauds for Kentucky which includes all of the articles in the chapter. It is a stretch to apply KRS 371.050 to a cc debt. The Statue of Frauds normally has a written contract, is applied to real estate or land, can be staisfied within one year and other things. Fortunately, in KY we do have the KRS 371.050 provision. However, have you thought that to apply this law would move the SOL to 15 years? Because it would have to become defined as a written contract.

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It really doesn't matter (to ME) IF as you allege the SOL becomes 15 years, the issue would be they can recover NO MORE than the amount that they actually paid for the note or assignment (clear language of the law) this means NO interest and NO "fees" tacked on allowed, (where they make alleged debts triple or more) they paid $15 they can ONLY get $15- period, we know there is no way they're going to court when they sued for $1500 and say, well we only paid $75 for this one.........IOW 100% of the time they Will dismiss on their own, it's in their best interest, think of what would become of their defaults(at least 90% of their business and WHY they file in the first place when we KNOW they don't have the evidence to win anyway 99% of the time) IF the court KNEW the facts!

IF you don't believe me, see how many cases you find where KRS 371.050 was fought,..... as a good consumer lawyer told us- there are NONE they dismiss 100% of the time (when we asked why this was not used in court)....... You see I'm not "guessing" - not at all ;)

Once they know that YOU KNOW about this , they do not wish to have court Precedence killing their very business, who would?

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