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What to with Midland Funding about this MTS ruling?


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Brief statement of facts.

Midland files a complaint and attaches an affidavit from MCM the servicer of the account. The affiant avers to an amount owed, the sale from the OC to Midland Funding, claims personal knowledge of the account and states, "the relevant financial information concerning the account includes the following.......... Nothing was following, just the affidavit.

A MTS is filed based upon the business records exception to hearsay. Challenged with case case law and including Midland Funding v Brent. Argued the affidavit is false, misleading and deceptive, is contrary to the rules of evidence and federal and state case law. Is hearsay, untrustworhty and incompetent.

On hearing for MTS affidavit from Midland Funding, the CA (a flunky attorney for the CA not with the filing law firm) shows up with a Notice of filing of Additional Documents (signed by another attorney whom is not the attorney of record) which include a bill of sale, two statements and a 1 page unreadable user agreement (none of which is filed stamped and what I recieved in the mail today is not file stamped). Objection upon introduction as improperly introduced, lack of custodian of record, unverified/certified and prejudicial to the defendant.

The ruling on the MTS is overruled and the affidavit is ruled as "nothing wrong with it, I see this everyday" (Judge's words) and the documents are alllowed to be introduced.

What to do next?

Edited by debtfighter
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Just wanted to add one of the statements shows a principle of 352.88 and a finance charge of 222.12 for a grant total of 575.00. The other statement show a balance of 364.28 and the finance charge is 8.43. The statements are dated 6 months apart. Things that make you go hmmmmmmm.

Edited by debtfighter
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Did you request discovery? As far as the documents being filed and stamped, I don't know. In my state, the only things required to be filed and stamped are the Summons and Complaint. Discovery documents don't have to be.

Since you only moved to strike the affidavit, I would move to strike the statements and bill of sale.

I don't know if this is an affirmative defense, but did you use KRS 371.050?

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Did you request discovery? As far as the documents being filed and stamped, I don't know. In my state, the only things required to be filed and stamped are the Summons and Complaint. Discovery documents don't have to be.

Since you only moved to strike the affidavit, I would move to strike the statements and bill of sale.

I don't know if this is an affirmative defense, but did you use KRS 371.050?

The MTS was filed within the first 20 days after service of the summons. So discovery has not happened yet.

The documents should of been referenced and attached to the affidavit. The Attorney is not a witness and the documents should not be introduced without a foundation.

Do you think I should file a formal Objection to Introduction of the Documents so it is preserved for the record?

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The MTS was filed within the first 20 days after service of the summons. So discovery has not happened yet.

The documents should of been referenced and attached to the affidavit. The Attorney is not a witness and the documents should not be introduced without a foundation.

Do you think I should file a formal Objection to Introduction of the Documents so it is preserved for the record?

If my court rules allowed it, I sure would.

It really bothers me that a judge says "I see this every day." In my opinion, that shows how little time and effort the judge takes to look at the evidence and to apply the rules of evidence. No telling how many people have been bamboozled because of that judge and others like him.

Is it possible for you to submit a Request for Admissions based on those documents?

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It really bothers me that a judge says "I see this every day." In my opinion, that shows how little time and effort the judge takes to look at the evidence and to apply the rules of evidence. No telling how many people have been bamboozled because of that judge and others like him.

Is it possible for you to submit a Request for Admissions based on those documents?

This same Court has 345 on Docket active cases for Midland alone.

I can do Admissions, Production of Documents and interrogatories.

The Bill of Sale is just a statement of general accounts being sold and not the account. I did point that out during the objection.

The account statements do not identify either the OC or JDB. Actually, the looked made up to me.

Do you think I could counter sue and bounce this into Federal court?

Originally, this was disputed with the 3 CRA, plus a DV was sent to Midland, and they called 34 times in a 24 hour period (though the number came up unknown) no one else had called it before or since, the phone was finally answered and Midland was told to not call it again, cease and desist, communicate by mail only and validate the debt as it is disputed. After all that, the documents introduced at the hearing was the first attempt at any validation at all.

I really question the differences in the finance charge also.

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This same Court has 345 on Docket active cases for Midland alone.

I can do Admissions, Production of Documents and interrogatories.

The Bill of Sale is just a statement of general accounts being sold and not the account. I did point that out during the objection.

The account statements do not identify either the OC or JDB. Actually, the looked made up to me.

Do you think I could counter sue and bounce this into Federal court?

Originally, this was disputed with the 3 CRA, plus a DV was sent to Midland, and they called 34 times in a 24 hour period (though the number came up unknown) no one else had called it before or since, the phone was finally answered and Midland was told to not call it again, cease and desist, communicate by mail only and validate the debt as it is disputed. After all that, the documents introduced at the hearing was the first attempt at any validation at all.

I really question the differences in the finance charge also.

I don't know about countersuing. Just like they have to prove their case, we have to prove our countersuits. I believe if one sends a timely DV (during the 30 day dispute period after the initial communication), and the JDB doesn't respond, but instead sues, you might have a violation. If the DV was not timely, I don't think there's a violation. If I'm wrong, hopefully someone will correct me.

But, if you do have evidence of violations on their part, go for it.

Typical bill of sale, and I wouldn't be surprised if the account statements are made up.

This is what I did: I sent a Request for Production of Documents. I asked for everything they already sent you, PLUS a complete accounting of the debt by providing all cc statements showing charges, payments, interest, and fees, and all documents they used in preparation of the lawsuit. Needless to say, the JDB provided the same things your JDB provided, but they did not have all the account statements...only a few.Based on those documents, I then sent a Request for Admissions. Examples:

Admit that the Bill of Sale from OC to JDB does not reference the name of the Defendant.

Admit that Plaintiff was not involved in the calculation of the alleged account while it was allegedly in the possession of the OC.

Admit that Plaintiff is not in possession of all account statements that would indicate how the amount claimed in the Complaint was calculated.

Regarding the account statements in your case, I'd include this:

Admit that the account statements submitted by Plaintiff do not reference ______________(name of Original Creditor).

Admit that the account statements submitted by the Plaintiff do not reference _______________(name of JDB).

I had more Admissions, but you get the idea. Based on whatever they send, you get them to admit they had nothing to do with the creation or maintenance of those records and that they never had access to the records while they were allegedly in the possession of the OC. That alone shows they can't have personal knowledge of the records, nor can they attest to the accuracy or authenticity of the records.

The reason I did it that way was because I didn't want any surprises. I wanted to focus on what they had and, by the Admissions, show there was no way they could prove anything. That way, if it goes to court, you can show the judge that they admitted they weren't involved in creating anything for the OC, that they can't prove they purchased your specific debt, etc.

Hope this helps.

Edited by BV80
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Brief statement of facts.

Midland files a complaint and attaches an affidavit from MCM the servicer of the account. The affiant avers to an amount owed, the sale from the OC to Midland Funding, claims personal knowledge of the account and states, "the relevant financial information concerning the account includes the following.......... Nothing was following, just the affidavit.

A MTS is filed based upon the business records exception to hearsay. Challenged with case case law and including Midland Funding v Brent. Argued the affidavit is false, misleading and deceptive, is contrary to the rules of evidence and federal and state case law. Is hearsay, untrustworhty and incompetent.

On hearing for MTS affidavit from Midland Funding, the CA (a flunky attorney for the CA not with the filing law firm) shows up with a Notice of filing of Additional Documents (signed by another attorney whom is not the attorney of record) which include a bill of sale, two statements and a 1 page unreadable user agreement (none of which is filed stamped and what I recieved in the mail today is not file stamped). Objection upon introduction as improperly introduced, lack of custodian of record, unverified/certified and prejudicial to the defendant.

The ruling on the MTS is overruled and the affidavit is ruled as "nothing wrong with it, I see this everyday" (Judge's words) and the documents are alllowed to be introduced.

What to do next?

Another sellout lazy judge who is either clueless or not doing his job. The Affidavit he sees nothing wrong with is the subject of multiple class action lawsuits against Midland and has cost them millions of dollars. The current class action is in Ohio and the judge there ruled there was definitely "something wrong with it". Just as there is a problem with all the foney trumped up claims and affidavits in the foreclosure arena, the same applies here. These documents aren 't worth the paper they are written on.

In Midland v. Brent the Ohio judge ordered Midland to stop using any affidavit which claims personal knowledge of the debt involved. They are still using the same affidavit they just call it by another form number and that is supposed to suffice as proof it is not the same affidavit.

Midland should be put out of business for their rotten corruption and the judges support their b.s. should be disbarred and removed from the bench.

Midland is attempting to circumvent the law by getting an order entered as part of this Ohio class action that will prevent anyone from suing them because of their usage of it, which will make Midland even more out of control, unlawful and corrupt (and I did not think that was possible but just goes to show you they can always get worse).

As to the Entry of Appearance, in a normal court of law, where ethics and procedure and respect and adherence to the law might apply there would be an Entry of Appearance, however Midland plays fast and loose with the law and the judges go along with it.

Edited by NOW_WHAT
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Guest usctrojanalum
The Attorney of record that filed the suit is not the AOR that added the Motion to Add Documents and the AOR is not the Attorney that appeared at the hearing. It seems to me somewhere someone had to file a Notice of Appearance?

Nah, don't get too caught up on this.

I'd try and get away from this judge. This is one of the times i'd look into arbitration.

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I'd try and get away from this judge. This is one of the times i'd look into arbitration.

Arbitration isn't a consideration. If I end up losing this I'll appeal. It is in District so I can first appeal to the Circuit Court. The documents they got that lame Judge to allow in isn't enough to sustain their case.

I got a pair of Aces in hole that they seem to be oblivious too. First, this isn't my account they are suing me on, it is a business account that I was only an authorized user on. That was at the later part of 2005. The invoices they submitted were dated 2010. It will be interesting to see how this plays out.

I think I will go to the Courthouse and pull about 100 of the active files and copy the affidavits, my guess is they will all be the same.

And, if the AOR does not want to play by the rules, I think the bar association would like to know about it.

This is going to turn into the worst $575.00 they ever tried to collect.

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Admitting the "Affidavit" into evidence is TOTAL BS and clearly goes against the published ROCP and Rules of evidence (did you cite those when you MTS?) NO MCM "employee" can possibly have "personal knowledge of the creation or maintenance of the alleged debt" thus IT IS hearsay per the rules.....I'm no lawyer but I'm quite positive that alone is enough to have an appeal granted, even more so due to Brent V Midland which I believe is binding precedence concerning those "affidavits" not to mention the testimony of admitted "robo signing" that went on (> 400 signed per day NOT in view of the Notary who signed the oath that they witnessed same) this is fraud on the Court (at best) IMO (not a lawyer)

"I" would try to get it not admitted again citing the ROCP and ROE of KY showing they're NOT allowed to be admitted, IF the judge still admits them, something is very much wrong IMO...

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I did cite the Rules of Evidence regarding the affidavit and the authority of the RCP's to bring the MTS. I also used Midland Funding v. Brent. I argued the affiant from MCM could not possibly have knowledge of the record of the OC. Further, argued the record was not attached as stated on the affidavit.

None of it mattered. I was surprised when not only did the Judge overrule my MTS, but allowed their Notice of Filing of Additional Documents into the record.

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That is too stupid for words IMO (not On YOUR part - but the judges part) ignoring the ROE is certainly grounds to grant an appeal IF it comes to that , Midland doesn't like defending counterclaims IF you have time to or can get leave to amend I would certainly add ANY legitimate claims against them... IMO

Being this "judge" ignores the ROE .....

In that case "I" would suspect they'll move for MSJ ......in which case (IF I'm correct)

"I" would cite:

[Bullock V WORLDWIDE ASSET PURCHASING,LLC BUYER OF NEXTCARD, INC., NO. 2006-CA-001757-MR] :

a. “Plaintiff must produce a bill of sale listing the name and account number of the defendant;”

b. “Plaintiff must produce a document specifically detailing how it reached the principal and interest amounts that it is suing for;”

c. “and Plaintiff must produce documentary evidence that the defendant is in fact the person responsible for the debt”

Edited by hopefulscambeater.
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I will try the MTS again if they MSJ.

That lawyer that was there knew I had them. We talked all the way back to the parking garage. He normally handles foreclosures and said the false affidavits are a common practice. He told me to keep track of everything involving the case and to keep a log of any correspondence from them.

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