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Need help with case law for Midland case in Indiana please!!


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I need some help writing a Memorandum of Law in Support of my Opposition to Plaintiffs Motion for Summary Judgment as well as a motion for hearing.

I am in Indiana and I am having trouble finding case law to support my claims here in Indiana - my question is can I use case law from other states to support? Or does it have to be from my state?

I am fighting Midland Funding on an account that I believe may have been included in our bankruptcy from 2005. I lost all of our papers in a flood a few years back and I don't have the account numbers - I had 2 accounts with Capital One but 1 was in the bankruptcy and the other we defaulted on after our daughter was born with a Syndrome and the medical bills piled up. I have no way of verifying which account number was the bankruptcy. I did the Request for Prod of Docs, they sent the usual generic bill of sale, 1 copies Cap One statement that only proves I had an account, and 2 new affidavits after I moved to strike the first affidavit of debt they attached.

I have no problem paying the original creditor for something, but I do not believe I owe someone who purchased a debt for pennies on the dollar ANYTHING.

I am also wondering how to go about filing for a hearing on all of this. I have 10 days after I file my response to file for a hearing. I am filing my response on 10/31/11 or 11/1/11 which is before the deadline.

ANY help is greatly appreciated, I am doing this on my own because we can't afford an attorney and we can't afford to have these bottom feeders garnish our wages. We are barely getting by as it is - we have over 30 creditors most of which are doctor bills and no one will work with us - everyone wants so much more money than we can afford to send.

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You should file for an extension of time first off, that usually gets you another 30-60 days to respond. Check your rules of procedure. Your bankruptcy attorney should have all the info you need, I'm sure he kept the file. Your assumption that you do not owe the junk debt buyer any money is factually incorrect, they have all the same rights as the original creditor. They are easier to beat in court, however, as they usually can't produce the paperwork. They use intimidation tactics to get summary judgments. The objection to the motion will depend on the info you put here. MSJs mean there is no material fact of the case in dispute. You have to show that there is.

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Regarding the credit card statment and pages of the cardmember agreement:

Rule 803(6) of the Indiana Rules of Evidence states:

(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.

A Midland employee has no personal knowledge of Capital One's creation and maintenance of records and no personal knowledge of Capital One's regularly conducted business activity. The documents submitted by Plaintiff were not created by Midland Funding but were allegedly created by another entity. As a result, Plaintiff cannot attest to the authenticity or accuracy of the documents. Therefore, the credit card statement and the pages of the cardmember agreement are inadmissible hearsay.

"This court reached the same result in Wilson v. Jenga Corp., 490 N.E.2d 375, 377 (Ind. Ct. App. 1986), in which we held that a business could not lay the proper foundation to admit the records of another business because the requesting business lacked the personal knowledge required to ensure reliability." Speybroeck v. State, 875 NE 2d 813 - Ind: Court of Appeals 2007

Regarding the Gutierrez affidavit:

In the affidavit dated, Ms. Gutierrez states, "Insofar as said facts are based on a composite of information from computerized records, I do not have personal knowledge concerning all of the information contained in said responses, but I am informed and believe that the information set forth therein for which I lack personal knowledge is true and correct."

"Affidavits 'based on information and belief' or 'to the best of affiant's knowledge and belief' are insufficient." Toro Co. v. Krouse, Kern & Co., 644 F. Supp. 986, 989 (N.D. Ind. 1986),

Did Midland provide a bill of sale from Cap1?

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Thanks for the info both of you, I appreciate it!

Yes, Midland did provide a Bill of Sale from Cap1 - but it was completely generic, it just basically states that they purchased a large portfolio of files - there is nothing to indicate that this debt was in that transaction and I don't think I should have to pay anything to them until they prove in court that they are in fact the owner of this account and that it wasn't included in the bankruptcy.

They also sent another affidavit supposedly from the vice-president of Cap 1 to "verify" the bill of sale. Jonathan Stalls says he is the Managing Vice President of Capital One Bank and in his position he is a custodian of the creditor's books and records, and is aware of the process. "On or about November 19th, 2010, Cap 1 sold a pool of charged-off accounts by a Purchase and Sale Agreement and a Bill of Sale to Midland Funding LLC." Again, nothing states that my account was transferred to them, it's all generic.

So basically they sent NOTHING that I requested in the production of documents. Except more crap.

At this time, I have absolutely no idea how they reached the amount they are saying I owe, no clue as to how they calculated interest or anything. And because I do not have any of the original papers I can't even check on it. I couldn't verify the account numbers and I no longer have the cards in my possession.

I just want to make sure that this is a legitimate debt and it was not included in the bankruptcy and/or re-aged. We have been through so much the past few years and we have so many debts piling up from medical bills and I can't remember anything anymore. So I expect when someone sues me that they have the proof necessary for a judgment. And they don't thus far.

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Let me make this easy for you. A bankruptcy is public record and on file at the court the BK was filed. All you have to do is go online (if available) or go to the courthouse and get the file, make copies, and then you have the answer.

They don't have to prove you did not include it in a BK. If that will be your argument, that is an affirmative defense (and a dang good one if it was incl) so you will have to prove it was discharged in BK.

Don't make this harder than it is. The records are easily available for free or a minimal cost. I googled, free bankruptcy lookup and got pages and pages of services to get you the info.

Legally, the JDB stands in the shoes of the OC so if you owed the OC you owe the JDB. However, you can search some of my posts. There has been a ton of discussion on standing (ownership of the account). Your on the right track to attack that standing.

However, it will all be moot, and will let you have a claim against them, if the alleged debt was discharged in BK. Don't expect them to provide that info for you. The good news is in the time it took to read this post you can have all those records for less than twenty bucks.

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