Being Sued by Midland Funding in Indiana

[ricky111]

I am being sued by Midland Funding in Indiana. I filed a Motion to Dismiss in Lieu of Answer (essentially failure to state a claim) and before Judge acted on it, they Amended the Complaint to add bogus Assignment Agreement from Jefferson Capital, LLC. I filed the same Motion against their amended complaint, but this time Judge denied it and I was asked to file an answer. I filed a simple answer denying everything, no affirmative defenses, no counter-claims. A week later, I filed a Motion to Strike the Affidavit of Debt because they failed to mention the amount of last payment. Also, the affidavit was not notarized. Anyhow, my Motion read as under:

Comes now, Defendant, xxxx, Pro Se, and respectfully states the following:

1. Plaintiff has attached to its First Amended Complaint, an affidavit from XXXX, an employee of Midland Credit Management, Inc. (“MCM”), titled “AFFIDAVIT OF DEBT” (re-attached herewith and hereinafter referred to as Exhibit ‘C’), claiming that the Affiant has personal knowledge of account records kept by MCM related to Defendant’s account, the claim at issue in Plaintiff’s complaint.

2. The Affiant writing AFFIDAVIT OF DEBT does not explain how the business records came into her possession, only that to the best of her belief they "represent" the actual records from the original creditor, Columbus Bank and Trust and their assignee CompuCredit Corporation and thereafter from Jefferson Capital Systems, LLC.

3. Affiant of AFFIDAVIT OF DEBT does not claim to have personal knowledge of how business records were kept at the original creditor, Columbus Bank and Trust. Additionally, Affiant of AFFIDAVIT OF DEBT does not claim to have personal knowledge of how business records were kept at CompuCredit Corporation and thereafter at Jefferson Capital Systems, LLC.

4. Affiant of AFFIDAVIT OF DEBT does not claim to have personal knowledge of the sale or assignment of the debt from the original creditor, Columbus Bank and Trust to CompuCredit Corporation. Additionally, Affiant does not claim to have personal knowledge of the sale or assignment of the debt to Jefferson Capital Systems, LLC and thereafter to the Plaintiff.

5. In the fourth paragraph of the AFFIDAVIT OF DEBT, Affiant states “The account was opened on 2002-03-11. The last payment posted to the account on 2006-10-01 and the amount is unknown”. How can the Affiant claim that the amount of last payment is “unknown” to her, while she claims to have personal knowledge of the account, and then how does she claim to know the exact date of the last payment on the account? And if the Affiant does not even know the amount of last payment, how does she claim to know that the total balance on the account is $xxx.xx? This goes on to show that Affiant, who claims to be the custodian of records at Midland Credit Management, Inc. (“MCM”), does not infact have the first hand personal knowledge of the purported account even during the time MCM claims to have been in possession of it. It further shows that MCM’s record keeping capabilities are faulty at best and MCM, as custodian of records, is incapable of keeping records and any statements from its employees based on those records can not be construed as factual and/or entered into evidence.

6. In the third paragraph of the AFFIDAVIT OF DEBT, affiant states “xxxx, Defendant …, which is owed to the Plaintiff on account ….”. Whether this Plaintiff is owed any sum due on this account is a “matter of legal conclusion” and NOT a statement of fact. Additionally, it indicates MCM’s bias towards the Plaintiff, and its inability to make statements of fact as it sees them.

7. In City of Gary v. McCrady, 851 N.E.2d 359 (Ind. Ct. App. 2006), the Indiana Court of Appeals held an affidavit was inadmissible under Trial Rule 56 because it contained legal conclusions and hearsay and was not based upon the affiant’s personal knowledge.

WHEREFORE, the Defendant prays this Honorable Court that ‘AFFIDAVIT OF DEBT’ attached to the Plaintiff’s First Amended Complaint be stricken from evidence in the above action and for such other relief that may be appropriate in this matter.

I was wondering, if I should amend my answer to add counter-claims or wait for them to retreat and file a separate case lateron. Judge has given them until Feb 2nd to file an answer to this Motion or its equivalent. I filed my answer on 1/4/12 and I think I have 30 days to amend it. Btw, I also sent them debt validation request on 1/3/12 (within 30 days of their first amended complaint). They responded with 2 documents - 9 page computer print-out and same junk affidavit of debt, just a day before I filed Motion to Strike the Affidavit of Debt ..

[Hannibal]

I am being sued by Midland Funding in Indiana. I filed a Motion to Dismiss in Lieu of Answer (essentially failure to state a claim) and before Judge acted on it, they Amended the Complaint to add bogus Assignment Agreement from Jefferson Capital, LLC. I filed the same Motion against their amended complaint, but this time Judge denied it and I was asked to file an answer. I filed a simple answer denying everything, no affirmative defenses, no counter-claims. A week later, I filed a Motion to Strike the Affidavit of Debt because they failed to mention the amount of last payment. Also, the affidavit was not notarized. Anyhow, my Motion read as under:

Comes now, Defendant, xxxx, Pro Se, and respectfully states the following:

1. Plaintiff has attached to its First Amended Complaint, an affidavit from XXXX, an employee of Midland Credit Management, Inc. (“MCM”), titled “AFFIDAVIT OF DEBT” (re-attached herewith and hereinafter referred to as Exhibit ‘C’), claiming that the Affiant has personal knowledge of account records kept by MCM related to Defendant’s account, the claim at issue in Plaintiff’s complaint.

2. The Affiant writing AFFIDAVIT OF DEBT does not explain how the business records came into her possession, only that to the best of her belief they "represent" the actual records from the original creditor, Columbus Bank and Trust and their assignee CompuCredit Corporation and thereafter from Jefferson Capital Systems, LLC.

3. Affiant of AFFIDAVIT OF DEBT does not claim to have personal knowledge of how business records were kept at the original creditor, Columbus Bank and Trust. Additionally, Affiant of AFFIDAVIT OF DEBT does not claim to have personal knowledge of how business records were kept at CompuCredit Corporation and thereafter at Jefferson Capital Systems, LLC.

4. Affiant of AFFIDAVIT OF DEBT does not claim to have personal knowledge of the sale or assignment of the debt from the original creditor, Columbus Bank and Trust to CompuCredit Corporation. Additionally, Affiant does not claim to have personal knowledge of the sale or assignment of the debt to Jefferson Capital Systems, LLC and thereafter to the Plaintiff.

5. In the fourth paragraph of the AFFIDAVIT OF DEBT, Affiant states “The account was opened on 2002-03-11. The last payment posted to the account on 2006-10-01 and the amount is unknown”. How can the Affiant claim that the amount of last payment is “unknown” to her, while she claims to have personal knowledge of the account, and then how does she claim to know the exact date of the last payment on the account? And if the Affiant does not even know the amount of last payment, how does she claim to know that the total balance on the account is $xxx.xx? This goes on to show that Affiant, who claims to be the custodian of records at Midland Credit Management, Inc. (“MCM”), does not infact have the first hand personal knowledge of the purported account even during the time MCM claims to have been in possession of it. It further shows that MCM’s record keeping capabilities are faulty at best and MCM, as custodian of records, is incapable of keeping records and any statements from its employees based on those records can not be construed as factual and/or entered into evidence.

6. In the third paragraph of the AFFIDAVIT OF DEBT, affiant states “xxxx, Defendant …, which is owed to the Plaintiff on account ….”. Whether this Plaintiff is owed any sum due on this account is a “matter of legal conclusion” and NOT a statement of fact. Additionally, it indicates MCM’s bias towards the Plaintiff, and its inability to make statements of fact as it sees them.

7. In City of Gary v. McCrady, 851 N.E.2d 359 (Ind. Ct. App. 2006), the Indiana Court of Appeals held an affidavit was inadmissible under Trial Rule 56 because it contained legal conclusions and hearsay and was not based upon the affiant’s personal knowledge.

WHEREFORE, the Defendant prays this Honorable Court that ‘AFFIDAVIT OF DEBT’ attached to the Plaintiff’s First Amended Complaint be stricken from evidence in the above action and for such other relief that may be appropriate in this matter.

I was wondering, if I should amend my answer to add counter-claims or wait for them to retreat and file a separate case lateron. Judge has given them until Feb 2nd to file an answer to this Motion or its equivalent. I filed my answer on 1/4/12 and I think I have 30 days to amend it. Btw, I also sent them debt validation request on 1/3/12 (within 30 days of their first amended complaint). They responded with 2 documents - 9 page computer print-out and same junk affidavit of debt, just a day before I filed Motion to Strike the Affidavit of Debt ..

Computer print outs are not satisfactory proof to validate a debt.

A valid validation must include one of the folowing:

a: Proof that the collection company owns the debt/or has been assigned the debt,

b: Only Copies of statements from the original creditor

c: Wet ink copy of the original signed loan agreement or credit card application bearing Your signature

tip: goto: summonsresponse .com

Edited January 19, 2012 by Hannibal

[ricky111]

I understand their reply is inadequate, I am waiting for 30 day period to expire. But, my question is more regd what strategy I shld adopt:

1. Doesn't filing counter-claims by me result in taking the case all the way to trial. That would involve bunch of more paperwork. Plus lot of legal exposure because they would want to fight it harder... and I would be actually pushing them to come and fight. Even if I were to win a counter-claim, are they ever going to pay the judgement? They are regulars in this courtroom, all judges and clerks know them. They seem to be a big clients to my small county with couple of judges.. I think I made tremendous points with my couple of Motions to Dismiss earlier. But, judge denied second one.

2. On the other hand, barring a few mistakes in my MTS I guess I may have muddied the water enough with it. So, on things like filing false/misleading affidavits, not complying with fdcpa guidelines, not validating the debt -there could be an opportunity to file a counter-claim.

Does any of it make any sense or I am splitting my hair too much..

Edited January 19, 2012 by ricky111