Jimmytheweed

Midland, Summary Judgement

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As I thought, I received a notice of Midland's motion for summary judgement. I am uncertain of what I should include in my response. I have not been served but did send a DV. Midland's attroney filed it as my answer. I sent and filed a more extensive DV with a letter stating that I had not been served and don't know the details of the case. There are multiple things wrong with their paperwork. Bill of sale is not specific to any account, they listed my account with the CRAs before their bill of sale was dated and it's the typical affidavit with a midland employee as the affiant. Where to begin? Any ideas?

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As I thought, I received a notice of Midland's motion for summary judgement. I am uncertain of what I should include in my response. I have not been served but did send a DV. Midland's attroney filed it as my answer. I sent and filed a more extensive DV with a letter stating that I had not been served and don't know the details of the case. There are multiple things wrong with their paperwork. Bill of sale is not specific to any account, they listed my account with the CRAs before their bill of sale was dated and it's the typical affidavit with a midland employee as the affiant. Where to begin? Any ideas?

Whose name was used on the affidavit, and the affidavit was from MN right and signed by a notary. I have some good people here helping me as I too have been served a motion for summary judgment. Hang tight maybe we can all work together!

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The affiant's name is Kay Ostmoe. Yes, from MN. I am also wondering about the date of the affidavit. It is May 9, 2011 but the suit was filed March 30th. Shouldn't they have had that at the time that they filed suit?

Not necessarily. I'm not familiar with all of the legalities surrounding affidavits, but it would seem to me it would depend on the contents and intent of the affidavit. If the affiant is attesting to the validity of information that occurred before the date of the affidavit, the date shouldn't be a problem.

I would think a date would be a problem if an affiant was attesting to things that had not yet occurred or to documents that had not yet been created. For instance, if in an affidavit dated May, 2010, the affiant stated that all of the credit card statements were true and correct, but statements after May, 2010 were included, that would be a problem, in my opinion.

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That makes sense. I was just wondering since they have screwed up so many other dates like, they listed this account with the CRAs before, according to them, they actually owned it.

You were right to pose the question, and don't accept my response just because it makes sense. Check your state statutes or Rules of Civil Procedure regarding affidavits. You never know what you might find.

.

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That makes sense. I was just wondering since they have screwed up so many other dates like, they listed this account with the CRAs before, according to them, they actually owned it.

I've seen affidavits stating knowledge of everything and knowledge of the debtor being a resident of the county and the state in which this action HAS BEEN FILED dated over a year before any lawsuit was initiated. C'mon!! All kinds of things could have occurred since that Affidavit was made (robosigned).

Edited by voidjudgment
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There have been at least two very prominent lawsuits filed against MIDLAND for robo signing documents.

Google 'Brent vs Midland, and see if the affidavits and yours have similar language..determine why those affidavits were falsely signed and use this as a precedent in your situation.

Midland tried to play games with me a few years back, but I reminded them that submitting false and misleading information was not only in violation of the FDCPA, but submitting a false affidavit signed under oath also constituted perjury (a Felony), AND SUBMITTING SUCH A DOCUMENT via US MAIL OR BY WIRE ALSO CONSTITUTED VIOLATING " US CODE TITLE 18 CHAPTER 63 "COLLECTIONS" ( FRAUD AND SWINDLES)and Article 1343 of the same code under "wire fraud"( both of which are felonies) Both of these codes subject the offending party/s to up to 10 years in the slammer and up to $1,000,000.00 fine. I concluded my letter to MIDLAND by requesting that they ensure accuracy and truthfulness of all statements made when they replied to my validation request. The reply I received from them:

They never even bothered to validate, just a letter stating" we are closing this matter and will have no further contact, by mail or by telephone with you in this regard". I think they were saying 'oops we don't need to go there...it might be painful' ! I think the BRENT vs MIDLAND" case sorta confirms this.

Edited by Noway
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MIDLAND FUNDING, LLC., IN THE COUNTY COURT IN AND FOR

BROWARD COUNTY, FLORIDA

Plaintiff,

CIVIL DIVISION

XXXXXX,

Defendant, Pro se CASE NO.: XXXXXXXX

MOTION FOR DISMISSAL OF SUMMARY JUDGMENT

Comes now the Defendant, XXXXXXXXXXX, and files this REPLY AND OPPOSITION TO PLANTIFF’S MOTION FOR SUMMARY JUDGEMENT in response to Motion For Summary Judgment And Supplement filed herein by Plaintiff, Midland Funding, Inc., as follows:

1. The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law.

A party moving for summary judgment has the responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file with the affidavits, if any, which it believes demonstrates the absence of a genuine issue of material fact.

Plaintiff has failed to discharge this responsibility in the Motion for Summary Judgment and Supplemental Motion filed with the Court. The Motion does not set forth the True facts upon which Plaintiff seeks a summary judgment. Rather the Motion states only “That there is no genuine issue as to any material fact and that Plaintiff is entitled to a judgment as a matter of law with regard to all Counts.” Motion for Summary Judgment should be denied.

2. Defendant was not served a summons as set forth in “Florida Rules Of Civil Procedures” Rule 1.070. depriving the Defendant of his legal rights to see and answer the Plaintiff’s complaint.

3. The Defendant, with limited knowledge of the complaint and furnished with less than adequate documentation from the Plaintiff, sets forth the following as grounds to dismiss the aforementioned Summary Judgment.

4. Defendant was denied any chance to a defense in this case and Plaintiff has attempted to mislead the court by misrepresenting the intent of the Defendant’s communications between the Defendant and the Plaintiff prior to the Defendant’s knowledge of this lawsuit by representing a “Verification Of Debt” letter sent from the Defendant to the Plaintiff as the Defendant’s answer to a summons with knowledge that the Defendant has not been served and without proof of proper service as required by Florida Statute 48.021.

5. 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. Even 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 total 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.

(Affiant’s Competency. An affidavit must clearly show the affiant is competent to testify to the matters stated in the affidavit. Fla. R. Civ. P. 1.510) (where affiant merely stated his title, that he was familiar with the facts stated in the complaint, and that to the best of his knowledge and belief the facts were true and accurate, affidavit was legally insufficient as it failed to show affirmatively that affiant was competent to testify to matters set forth therein, was not based on personal knowledge, and did not set forth facts as would be admissible in evidence); Iglesia v. City of Miami Beach, 487 So. 2d 1205 (Fla. 3d DCA 1986), rev. denied, 494 So. 2d 1151 (Fla. 1986)

7. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

8. 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 defendant to collect debt.

9. Plaintiff failed to notify the Defendant of the assignment of the Defendant’s alleged debt within 30 days after the assignment as set forth in Section 559.715, Florida Statutes and violating 15 U.S.C. § 1692(e)(5) and (10).

CACH, LLC, Plaintiff, vs. STEPHEN J. QUARTERMAINE, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO 07-11074. June 16, 2008. Terri-Ann Miller, Judge. Counsel: Scott D. Owens, Cohen & Owens, P.A., Hollywood. Harold E. Scherr

10. Plaintiff has failed to show a valid “Bill Of Sale” of the Defendant’s alleged debt from the original creditor but has submitted a generic letter stating that the Plaintiff has purchased a batch of defaulted credit card accounts but failing to identify the Defendant’s alleged debt in the purchase by name and/or account number therefore the Plaintiff lacks standing to file suit as Plaintiff has not been shown to be the holder in due course of the Defendant’s alleged account.

PALISADES COLLECTION, LLC, Plaintiff, v. LOUISE FEDORAK, Defendant. County Court, 2nd Judicial Circuit in and for Wakulla County. Case No. 08-01-SC. August 6, 2008. Jill Walker, Judge. Counsel: Justin D. Jacobson and Richard W. Reno, for Plaintiff. Robert G. Churchill, Jr., Tallahassee, for Defendant

11. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

WHEREFORE, Defendant, XXXXXXXXXXXXX, respectfully submits that the Court should deny the Plaintiff's Motion and Supplemental Motion for Summary Judgment, filed herein by Midland Funding LLC. and prays for Dismissal with prejudice of the complaint by the Plaintiff for damages of $XXXXXX and any further relief this court deems just and proper.

Defendant's motion for dismissal of summary judgment submitted this 23rd day of May, 2011

CERTIFICATE OF SERVICE

I HEREBY certify that a true and correct copy of the foregoing was sent via certified U.S. mail to

Pollack and Rosen, P.A. 800 Douglas Road, North Tower, Suite 450, Coral Gables, Florida, 333134 on this 23 day of May 2011.

XXXXXXXXX

I certify under penalty of perjury that the foregoing statements are true and correct to the best of my knowledge.

____________________________

Date

_______________________________________________

XXXXXXXXXXXX

State of Florida

Broward County

Signed and sworn to (or affirmed) before me on _______________________ by XXXXX XXXXXXXX

(Seal) _______________________________________

Notary Public

My commission expires:___________________

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Your title is incorrect. It's not a Dismissal of Summary Judgment, because summary judgment hasn't been granted. You're filing Defendant's Opposition to Motion for Summary Judgment.

8. 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

The FDCPA doesn't require that.

Edited by BV80
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Here's some more case law for you:

Summary Judgment:

“When the record reflects the possibility or slightest doubt that an issue exists, summary judgment is improper.” Athans v. Soble, 553 So.2d 1361 (Fla. App. 2 Dist. 1989)

“Summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.”

Pandol Bros. v. NCNB Nat’l Bank of Fla., 450 So.2d 592 (Fla. App. 4 Dist. 1984)

Assignment:

In construing an assignment, the court must determine (1) exactly what has been assigned to make certain that the plaintiff-assignee is the real party in interest, and (2) that a valid assignment has been made.

University Creek Associates, II, Ltd. v. Boston American Financial Group, Inc, 100 F. Supp.2d 1337 (S.D. Fla. 1998), related reference, 100 F. Supp. 2d 1341 (S.D. Fla. 1999), related references, 100 F. Supp. 2d 1345 (S.D. Fla. 2000), related reference, 101 F.Supp.2d 1370 (S.D. Fla. 2000)

Affidavit:

“In face of answer denying all allegations of the complaint, affidavit containing statement by officer of plaintiff that the allegations of the complaint were true and that he was personally knowledgeable was insufficient to support motion for summary judgment.”

Nour v. All State Pipe Supply Co., 487 So.2d 1204 (Fla. 1st DCA 1986)

If Midland's affidavit contained the words "information and belief":

“An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by trial court on a motion for summary judgment.” Fla. R. Civ. P. 1.510(e).

Thompson v. Citizens National Bank of Leesburg, 433 So.2d 32 (Fla. 5th DCA 1983)

“Affidavit based on information and belief rather than personal knowledge was not admissible into evidence and should not have been considered by trial court in connection with motion for summary judgment.” F.S.A. 90.604, Fla. R. Civ. P. 1.510(e)

Campbell v. Salman, 384 So.2d 1331 (Fla. 3rd DCA 1980)

Hope this helps.

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