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Do I have anything left to fight with?


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I am being sued by Midland Credit (in Wisconsin) for a credit card debt I may or may not have incurred a few years ago.

(Fell on hard times, defaulted on credit cards, thought I had them all settled with the OC's until I got served by Midland, honestly don't know if I ever opened it or not, but from discovery, it looks like it was mine).

Got summons, answered it, requested documents, (all with help from the forum, thank you) and got alot more documents than alot of the other people on the board did. They gave me a bill of sale from the OC to JDB1, affidavit of sale of account from JDB1 to Midland, bill of sale from JDB1 to Midland, and a year of credit card statements with my name and address on them.

Going by this, I have to assume this was probably a card I used back when I was in trouble, but I really don't remember (I guess I'm stupid, I know. had 4 or 5 cards we were living off back then).

Had a deposition with Midlands attorney, and he tried to twist all my words around and get me to admit I said things I didn't. Then he told the court reporter (at the attorneys office) to go off the record. I asked him why, and he said because it's not necessary for the rest to be on record. I told him that it was not necessary for me to be there anymore then, which he didn't like, and told me he was going to subpeona all my bank records because he hates liars. I may be stupid, but I didn't lie about anything, so I got pissed off and cussed him out and left. I know, bad move losing my temper, but I have alot of crap going on right now (no job, pretty much broke except for 2 10 year old cars and my house, both parents in the hospita...I know, just another sob story)

Anyhow, I guess my questions are do I have anything left to fight with? They didnt produce a signed credit application, but all of the evidence pretty much shows it had to be mine.

If they get a judgement, which i assume they will, how is that applied? Will I have to sell my house? Will they garnish my wifes wages?

Any help would be appreciated, or if I'm done, tell me I'm done.

Thank you

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Of course you can fight. Throw the atty a curve ball and don't dispute the debt, you opening the account, you using the card, or what the balance is. Just dispute they don't own the debt and challenge their hearsay ownership documents as the hearsay they are.

If he threatened to subpoena your bank records on the official record and he does not indeed subpoena them, sue him for an FDCPA violation. He will argue some immunity which might or might not work but you can turn the tables pretty easy. Plus what good are your banks records going to do if you challenge ownership. So what, you made payments, that does not mean you now own the debt because I made payments on the account.

Trust me, watching two attys look shocked when you don't do what 99.9% of most sued do, dispute the debt, account and/or amount owed, and just cut right to the chase and turn the trial into an issue on standing? Now, that's good stuff.

One issue I see, however, is you might have already gone down a defense road there is no turning back on, that I don't know of course. However, steer the issue to ownership (standing). It sounds like they got you nailed on the account being your account, so turn the tables and embrace that and basically say, so what, prove your ownership with something I can cross examine, I can't cross examine a bill of sale, an affidavit and of course your going to say Midland owns the debt, they are paying your bill.

See ya in court but be warned your bringing a knife to a gunfight with the garbage you've presented so far. They just love it when their intimidation bluff is thrown right back at them with an all in re-raise.

Edited by Coltfan1972
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P.S.

They accuse you of playing games, not acting within the spirit of the law, using collection laws and the FDCPA as a sword and not a shield? Say, 100% correct, you nailed that one.

Then quote-

The FDCPA protects all consumers from the gullible to the shrewd.

Bass vs Stolper, Koritzinsky, Brewster, and Neider, S.C. 111 f3d. 1322, 1330, 7th Circuit, 1997.

I just happen to be the shrewd and you just threatened the wrong person with subpoenaing my bank records. You better follow through and spend the money getting documents that won't help you one bit or I'll see you in federal court.

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I just happen to be the shrewd and you just threatened the wrong person with subpoenaing my bank records. You better follow through and spend the money getting documents that won't help you one bit or I'll see you in federal court.

No violation there. OP has enough to worry about without being lured into filing a frivolous suit, don't you think?

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before the court allows them to question you after their opening statement and your putting off of opening statement till plaintiff rests their case, ask the court to determine the issue of standing to save judicial resources.

Standing is the issue with the bills of sale the CA knows it the court knows it and now you know it.

there is some fight in you but you are not gonna win if you admit anything to them. I say this because I hate bullies and you need to get into your head, the court and the plaintiff's don't care about your personal situation they want to collect money from basically out of the mouths of your family.

So where you may feel they have some power over you, know this the people you did owe sold this debt for 4 cents on the dollar. They could have gotten 25% from you but they sold it to poeple who frankly wouldn't care to see you living in a cardboard box.

You can win but you have to study up and learn and unfortunately you are going to have to miss some fun stuff. read all the posts you can on these issues

Standing

Records admissiability

witness personal knowledge

fair collection tactics

You have to use the law to fight, you can't ladida it hoping the won't come after your house. They will only go away if you put up a good legal defense.

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No violation there. OP has enough to worry about without being lured into filing a frivolous suit, don't you think?

Far from frivolous, in my opinion. A collector that makes a threat they don't follow through with is a violation of the FDCPA. I don't know if the FDCPA applies after suit is filed. I've seen and read different opinions.

That's why I asked if the threat was on the record. I might, I could, I will consider, ect... is a lot different than I'm going to subpoena records.

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"he was going to subpeona all my bank records"

"The threat to take any action that cannot legally be taken or that is not intended to be taken." 15 U.S.C. 1692e(5).

Far from frivolous, in my opinion. A collector that makes a threat they don't follow through with is a violation of the FDCPA. I don't know if the FDCPA applies after suit is filed. I've seen and read different opinions.

That's why I asked if the threat was on the record. I might, I could, I will consider, ect... is a lot different than I'm going to subpoena records.

Assuming the FDCPA applies to this instance, and it does not, the subpoenaing of bank records is an action that can be legally taken. Further, it is impossible for you to show that, at the time the statement was made, plaintiff's counsel did not in fact intend to subpoena the records. Intent is merely a state of mind existing at a given point in time. Plaintiff need not actually subpoena the records for there to be intent.

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buttress his defense of the case.

read the successful midland cases and replicate the results. As your level of knowledge increases, you will spot even more violations and later MAY possibly amend your answer to adress those.

while you feel you cannot win now, let me tell you all is not lost.

anyway I can help just let me know.

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I'd argue if he never did issue the subpoena that would make a prima facie case there was never an intent, therefore, flipping the burden back to the atty to prove there was intent. Agree, based on rethinking the situation, the atty could probably meet that burden, however, you've now become a pest and advanced the case past the frivolous stage, which means no atty fees awarded.

Assuming the FDCPA applies to this instance, and it does not

But this makes it all moot.

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he was going to subpeona all my bank records

My response? "Mr. / Mrs. stenographer, turn on your machine, because I want this on the record. As for you. Mr. Attorney, have fun. Go right ahead and subpoena my bank records. I'll immediately file a motion to quash. You'll have to show the court how anybody's bank records prove that YOU own my alleged debt. The basis of this action is whether or not you can prove standing through ownership. Thank you for your lack of professional courtesy and the baseless threats, and the patent insult in which you called me a liar. If you would like to recant, the machine is on. If not, look forward to MY subpoena for the person at Midland who claims to be the custodian of records for the original creditor."

Hasta la vista, Baby.

Arnold, The Terminator

Also,''Never take any s--- from anybody."

Billy Joel Concert, Long Isalnd

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I'll immediately file a motion to quash. You'll have to show the court how anybody's bank records prove that YOU own my alleged debt. The basis of this action is whether or not you can prove standing through ownership.

And what is even more fun is after you win the motion or they lose the motion to compel, to then turn around and give them what they wanted because is irrelevant anyway. Just fight them for sake of fighting. I loved doing that. What was the worst case? They got irrelevant information and/or documents.

On a side note I'm not sure the OP had raised the issue of standing and I think was still using the I don't owe this money and the accounts are not mine, not you don't own the account. I think the atty was using the intimidation because the OP was trying to argue against the account and the threat to get bank records was to show the OP knew about the account and was paying on the account, therefore, why would you be paying on an account that was not yours.

That's why I suggested throwing the curve ball of saying fine, got me on that one, now prove you own it, I just don't think that had been raised. My position on the comment is clear but I do think the violation would be not following through, not for the threat. Based on the OP defense it would be relevant, once the issue of standing is raised the bank records become irrelevant. As you correctly stated, paying on the account in no way establishes standing, however, it can establish knowledge and acknowledgement of the account.

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he was going to subpeona all my bank records

Go right ahead and subpoena my bank records. I'll immediately file a motion to quash. You'll have to show the court how anybody's bank records prove that YOU own my alleged debt.

The bank records are likely to lead to relevant and admissible evidence showing payments made on the account. For that reason alone, they are discoverable.

You guys are lucky I'm not a collection attorney suing you. :p

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You guys are lucky I'm not a collection attorney suing you. :p

If your client opened up the checkbook and said win at all costs, then yes.

It would also be a ton more fun!! When I was in court the other side (JDB) actually thought as a matter of law they could use business records to get the OC's records admitted.

It was not like they were like this is the best we have so throw it out there and see if it will stick. The judge actually looked shocked when they continued arguing after his ruling.

It's no fun fighting somebody that is too dumb to know your destroying them, what fun is that. I want your best shot and then I want to beat you.

I know Nascar, be careful what you wish for. I'm just crazy and arrogrant enough where I would say bring it on. :D Like Vinny said in the pool hall trying to collect the debt, "I'd could use a good a$$ kicking, I'll be perfectly honest with you, but no, I'll just take the money."

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The bank records are likely to lead to relevant and admissible evidence showing payments made on the account. For that reason alone, they are discoverable.

How does a bank statement prove Midland has standing to sue? That is the basic issue here as I see it. The payments would have been made to the OC. That establishes one element of account stated, which according to what I've seen posted lately is not transferrable to the JDB. Payments do not establish ownership of the account. I'd argue this way......"Sure, I used to make payments to XXXX Bank. So what? You claim to have bought the account, but you can't prove it with admissible evidence. Therefore the payments are irrelevant, all they prove is that I paid the rightful owner of the account, which apparently you are not, despite your unproven claims to the contrary."

You guys are lucky I'm not a collection attorney suing you.

Man, would I like to take on that challenge. You would make out superbly, as you would rack up one of the biggest legal bills in the history of this industry. Your client, however, would get absolutely not one penny, ever. We may sound like a bunch of non lawyer amateurs, but I assure you, we do our homework. Especially where judgments are concerned.

That aside, although we have had our disagreements, I respect your opinions and knowledge. Actually, I have learned quite a bit from you, which even though it pains me to say so, I willingly admit that you have a much better base of knowledge than myself. After all, I've only been cramming 8-10 hours a day for two years as opposed to your longer career. We may bang heads now and then but as you have seen, I am always respectful to you and will admit when I am wrong. That too is painful, but too bad for me. That's just the way it goes. If you want to be the best, you have to learn from the best.

As for what was said earlier, that brings up something I have been thinking about for this site. Why not do exactly what you suggested? Let's do a full scale mock trial situation. We can appoint one of the "real" attorneys (I don't know who they really are) as judge. Then we can pick defendants and plaintiffs and assign them counsel appointed at random by the administrators. Pick your state, write a complaint, etc. This could be a lot of fun. It would also give the more advanced legal minds here a chance to really get into theory and litigation strategy. The newbies could watch the cases progress on line and learn while we learn.

Me, I can't wait to take on my pal Coltfan or you. That alone should be worth the price of admission. Whaddaya think, big guy? Nascar? Are you game?

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The bank records are likely to lead to relevant and admissible evidence showing payments made on the account. For that reason alone, they are discoverable.

How does a bank statement prove Midland has standing to sue? That is the basic issue here as I see it. The payments would have been made to the OC. That establishes one element of account stated, which according to what I've seen posted lately is not transferrable to the JDB. Payments do not establish ownership of the account. I'd argue this way......"Sure, I used to make payments to XXXX Bank. So what? You claim to have bought the account, but you can't prove it with admissible evidence. Therefore the payments are irrelevant, all they prove is that I paid the rightful owner of the account, which apparently you are not, despite your unproven claims to the contrary."

You guys are lucky I'm not a collection attorney suing you.

Man, would I like to take on that challenge. You would make out superbly, as you would rack up one of the biggest legal bills in the history of this industry. Your client, however, would get absolutely not one penny, ever. We may sound like a bunch of non lawyer amateurs, but I assure you, we do our homework. Especially where judgments are concerned.

That aside, although we have had our disagreements, I respect your opinions and knowledge. Actually, I have learned quite a bit from you, which even though it pains me to say so, I willingly admit that you have a much better base of knowledge than myself. After all, I've only been cramming 8-10 hours a day for two years as opposed to your longer career. We may bang heads now and then but as you have seen, I am always respectful to you and will admit when I am wrong. That too is painful, but too bad for me. That's just the way it goes. If you want to be the best, you have to learn from the best.

As for what was said earlier, that brings up something I have been thinking about for this site. Why not do exactly what you suggested? Let's do a full scale mock trial situation. We can appoint one of the "real" attorneys (I don't know who they really are) as judge. Then we can pick defendants and plaintiffs and assign them counsel appointed at random by the administrators. Pick your state, write a complaint, etc. This could be a lot of fun. It would also give the more advanced legal minds here a chance to really get into theory and litigation strategy. The newbies could watch the cases progress on line and learn while we learn.

Me, I can't wait to take on my pal Coltfan or you. That alone should be worth the price of admission. Whaddaya think, big guy? Nascar? Are you game?

I think that a "mock" trial is an excellent idea ! What better for a learning environment!!

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I'm still rather new , but i think it's imporant that you don't simply hit them on standing to sue you ... if i read this right , there's no affivdavit of sale from OC to JDB1 ... which is great for you because that pokes holes in the chain ...

i would review carefully the credit card statments and look for any mistakes they've made in coming to the total amount ... it can't hurt to point out if some of the charges don't make any sense , like say a bar 500 miles from where you live ...the more mistakes you can find on their end , the better for you .

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Quite alot of responses, thank you!

If he threatened to subpoena your bank records on the official record and he does not indeed subpoena them, sue him for an FDCPA violation.

The threat to subpeona my bank records, and the sale records of the one hardware store charge showing on the statements they gave me was issued off the record.

Mr. / Mrs. stenographer, turn on your machine, because I want this on the record.

As soon as he said the rest is "off the record", the reporter shut down and put everything away, guess I should have said something, but the way he jumped down my throat everytime I asked him a question because I'm "not allowed to ask questions in a deposition", I figured it was better to keep my mouth shut.

On a side note I'm not sure the OP had raised the issue of standing and I think was still using the I don't owe this money and the accounts are not mine, not you don't own the account. I think the atty was using the intimidation because the OP was trying to argue against the account and the threat to get bank records was to show the OP knew about the account and was paying on the account, therefore, why would you be paying on an account that was not yours.

I did not raise the issue of standing, only that I had no knowledge and demanded proof in my original answer. He did ask me if I made a point of paying on accounts that were not mine, and I told him "no". He then told me I was admitting that the account was mine, and I said "no I am not, I don't have a recollection of a payment that may or may not have been made 3 years ago", that was the end, and we went off record so he could call me a liar.

i would review carefully the credit card statments and look for any mistakes they've made in coming to the total amount ... it can't hurt to point out if some of the charges don't make any sense , like say a bar 500 miles from where you live ...the more mistakes you can find on their end , the better for you .

The account statements they gave me start out with a balance over $10,000, and have a total of 6 payments made and one charge to Experian Credit (I must have bought a credit report to see how I was coming on cleaning myself up) and one charge from a hardware store in my town on them.

Here is what I asked for in my discovery request:

Discovery Request is hereby made unto you to furnish to Defendant, within 20 days, documents setting forth all items and details of the account on which the cause of action of plaintiff’s complaint is based, including any contract or agreement bearing the signature of the Defendant, a certified affidavit from a person with direct knowledge of the account and record keeping from First National Bank of Omaha establishing three facts on which to ground Plaintiff’s claims: that Defendant opened an account with First National Bank of Omaha, that Defendant failed and refused to make payments on the account, and that the Plaintiff is entitled to sue Defendant as their assignee. It is also requested that you furnish the date of each alleged transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account.

This is what i recieved:

-Bill of sale from OC to JDB1 dated 04/14/2010

-Bill of sale from JDB1 to Midland dated 12/09/2010

-Affidavit of sale from JDB1 to Midland (It also states in affidavit that it was purchased from OC) dated 3/24/11 stating sale was made to Midland 12/09/2010

-Affidavit of sale from JDB1 to Midland stating account #, my name, and the balance at time of sale dated 5/10/2011.

-Credit card statements from OC Dated from 04/08/2009 through 03/14/2010

I think it's pretty obvious that it must have been my card...would I really have a case because there is not an affidavit of sale from OC to JDB1, along with the lack of a signed contract by myself with the OC?

Thanks again all!

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I think it's pretty obvious that it must have been my card...would I really have a case because there is not an affidavit of sale from OC to JDB1, along with the lack of a signed contract by myself with the OC?

Just be aware that even if it is/was your card, and even if you did/do owe money on it, that does not necessarily mean you owe anything to Midland.

The fact that they went to the expense of deposing you tends to indicate Midland's case is pretty thin. Keep hammering away at the assignment.

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I think it's pretty obvious that it must have been my card

I think it's 100% obvious it was your card and not only your card but you paid on the account associated with the card.

All the more reason it will make Midland's head explode when you say, prove you now own the account and I should be making the delinquent payments to you (Midland) and not the original creditor.

Oh that letter that says you now own the account or that affidavit ? Hold on, let me have five minutes and I'll have a letter from the president that I now own the White House and all property associated.

What that's B.S.? Well Mr. Atty for Midland you opened this can by claiming by way of a letter, affidavit or something else written (which actually does not appear they have even done that) that somehow makes something true, because it's in writing. Here Mr. Midland, here is a letter that says you owe me one million dollars, now how would you like to make that payment, I own the obligation, look here it is in writing. What's the problem, surly your response is not just because it is in writing does not mean you don't owe me million dollars?

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Does either one of the affidavits mention the credit card statements? If so, what is said about them? If not, then the statements have not been authenticated.

Documents must be authenticated in some way to be admitted into evidence. Without authentication, the statements should not be admissible. Therefore, Midland would have no documentation showing your name other than their own word that you had the account in question.

Edited by BV80
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-Bill of sale from OC to JDB1 dated 04/14/2010

This is the one that counts. Does this list your account number and name as you say here.........-Bill of sale from JDB1 to Midland dated 12/09/2010

If not, Midland has a real problem, like submitting fraudulent evidence to the court. If JDB1 faked documents, and Midland didn't check them out, that's on them. Then again, if that really happened, Midland has an adequate remedy at law against the first JDB and you could be out of the case entirely. Raise a ruckus and let them fight it out.

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Also, many times (check your rules) evidence that would be deemed inadmissible can be taken at face value as true, if not disputed. So if they do have an assignment with your specific account, date(s), or names that will need to be disputed or could be considered correct even though hearsay.

It appears right now they don't even have the lowest level of evidence needed to even move to the dispute or not dispute stage.

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