MIDLAND affidavit - Can anyone break this down?

[khub1102]

This is the affidavit I received from Midland Funding LLC. Please let me know your thoughts.

Keep in mind, the affiant is the very same guy that signed the affidavit in the MIDLAND vs. Brent case, and who was proven to be a robo signer......

Following is what it says.....

Ivan Jimenez, whose business address is 16 Mcleland Road Suite 101, St. Cloud, MN 56303, certifies and says:

1. I am employed as a Spe******t and am a custodian of records for Midland Credit Management, Inc. ("MCM"), servicer of this account on behalf of plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon personal knowledge of the recordkeeping systems maintained on plaintiff's behalf. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's GX MXXXX account XXXXXXXXXXXXXX (MCM Number XXXXXX) (hereinafter "the account"). I have possession of the books and records pertaining to the account and am authorized to make this affidavit on plaintiff's behalf.

2. I am familiar with the manner and method by which MCM creates and maintains its normal business books and records. The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. The record or compilation was made at or near the time of the act or event or reasonably soon thereafter. The relevant financial information concerning the account includes the following:

3. The account shows that the defendant(s) owe(s) a balance of $5XXX.XX.

4. Upon information and belief, and based upon MCM's business records: 1) Debtor Person opened the account with GX MXXXX on date; 2) the last payment posted to the account on 2007-XX-XX and 3) the account was charged off on 2007-XX-XX.

5. The defendant(s) failed to make payments on the acccount; demand has been made for defendant(s) to make payment of the balance owing on the account described herein more than thirty (30) days prior to making this affidavit; and the attorneys representing plaintiff were retained for the purpose of collecting the delinquent debt owed on the account set out above.

6. MCM's business records do not indicate that the defendant is a minor or mentally incapacited person.

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

08-04-2009

Signed: Ivan Jimenez

State of Minnesota

County of Stearns

Signed and sworn to (or affirmed) before on 08-04-2009 by Ivan Jimenez.

Signed: Kristen L. George-Notary Public

Commission Expires: Jan. 31, 2011

[BV80]

1. He has knowledge of Midland's record keeping methods. That's all he knows. He knows nothing about the OC's records or record keeping methods. The only way he can claim he knows Midland is the successor to the account is because Midland produced a bill of sale and showed it to him. How does he know your record was included in the sale? Was he present when Midland supposedly bought some accounts from the OC? I doubt it. He's merely assuming.

You notice he states he has possession of the books and records pertaining to the account. He didn't say he actually looked at them and reviewed them.

2. He knows how Midland creates and maintains Midland's records. Fine. Has Midland included any records from the OC? If they have, how would he know that those records were transmitted from the OC by a person with knowledge? He's assuming they were.

He also states the record was made at or near the time of the event. What records did they include?

4. He states "based upon Midland's records". The account wasn't opened with Midland. They weren't there when an account was opened with the OC. What evidence does Midland have from the OC that shows the account was opened on a particular date?

He also states "based upon information and belief". That's not personal knowledge. If he doesn't have proof from the OC, his statements are based on information from Midland, and he believes Midland's information to be true. Records created by Midland prove nothing.

5. Do they have proof from the OC?

[First Timer]

First, you need to subpoena and depose this clown. He's the guy that testified he was signing 200-400 affidavits a day and only looking up a few to see if they were accurate.

Second, the affidavit is obviously hearsay.

I personally like Coltfan's checkbook register line of questioning. How can he verify whether the records of MCM are correct? If I write down in my checkbook register that I have a balance of a million dollars and I assure you that my records are correct and then give you my records, can you then testify with personal knowledge that I do in fact have $1 million dollars in my account?

If Ivan signs 200 affidavits a day, and he works an 8-hour day, that means he averages signing an affadavit every 25 seconds. Ask him if he smokes. Ask him if he ever goes to the bathroom while at work. How long does it take you to go to the bathroom? How long are your breaks? Do you sign and review records for every minute of every workday? Do you ever talk on the phone or respond to emails while at work? Basically, burn up his workday to show that he could not have reviewed the documents or the records.

I would also ask about his testimony in the Brent v Midland case. It goes to credibility and should allow introduction of the Brent v Midland settlement into evidence...

Get creative and and make them twist in the wind! Go read the settlement ruling and see how they tore him apart...

"Robo-Affidavit" Class Action Settles for $5.2 Million | MIDLAND FUNDING v. BRENT

Edited February 13, 2012 by First Timer

[BV80]

If Ivan signs 200 affidavits a day, and he works an 8-hour day, that means he averages signing an affadavit every 25 seconds.

Your math is a tad bit off. There's 3600 seconds in an hour. An affidavit every 25 seconds would be about 144 affidavits an hour. If he signed an affidavit every minute, he'd sign 60 per hour.

But I agree with you. He has to take breaks. Even if he's signing one affidavit every minute, he's not reading them. Nor is he reviewing the records for each account related to each affidavit.

[khub1102]

Thank you both so much! I knew someone would speak up and hopefully it will help someone else, as well as it has helped me.

Great info!

[BTO429]

I am familiar with the manner and method by which MCM creates and maintains its normal business books and records

So what The mere fact the Plaintiff obtained the records from the OC and then retained them is an insufficient basis for their introduction into evidence. If the person who created those records at the OC can not be in court to attest that they are correct it then becomes hearsay.

The record or compilation was made at or near the time of the act or event or reasonably soon thereafter.

He is not even sure when the records were created he even admits that they could have been created after the fact. So which is it? A court will not accept a statement such as "somewhere around the time of the act"

He may have possession of the books and records but he was not present when they were made nor was he a part of the record keeping process so he, in no way, can attest to them being accurate.

I say the whole affidavit is moot, fails to state a claim.

[Coltfan1972]

Please let me know your thoughts.

The same typical garbage that is posted here every other day when it comes to Midland affidavits.

It basically says Midlands records say you owe money. The same as me putting in an affidavit that my checkbook register shows twenty million dollars in Regions bank account number 12345, which belongs to Coltfan, therefore, I have twenty million dollars in the bank because my records indicate I have twenty million dollars in the bank and I believe my records to be true and correct.

[First Timer]

Your math is a tad bit off. There's 3600 seconds in an hour. An affidavit every 25 seconds would be about 144 affidavits an hour. If he signed an affidavit every minute, he'd sign 60 per hour.

But I agree with you. He has to take breaks. Even if he's signing one affidavit every minute, he's not reading them. Nor is he reviewing the records for each account related to each affidavit.

Yeah -- you're right it's actually about 2:25 per affidavit...

[antiquedave]

Settlement Agreement

Is your affidavit the same one used in Brent? the date would indicate that it is what a weeks difference than Brents?

I recall there was a brou ha ha about the Class and whether they were being stripped of their rights for a lousy 10 bucks, and a one year injuction against further suits on the affidavit,

you may not be able to sue them on the affidavit but you certainly could use all of the ammo provided in the Brent case to your advantage

[BV80]

Yeah -- you're right it's actually about 2:25 per affidavit...

In my opinion, even that is inadequate when one is supposed to review records.

[usagi555]

In my opinion, even that is inadequate when one is supposed to review records.

I can guarantee you that is wholly inadequate. Assuming they actually have the notary right there when it is time to notarize the docs, that includes the notarization process. Not that they'd skimp on that or anything.

My affiant in my case averaged about 1 affidavit every 2 minutes. I'm going to make up some numbers here, but let me illustrate one of the errors in the billing statement:

Balance: $4,851.32

Credit limit: $3,000.00

Amount Over Credit Limit: $722.38

That's the kind of thing that I could take and really argue that their computer systems are unreliable. It's about 6 lines of code to get that right and they are trivial lines of code. My affiant didn't catch that. She also didn't catch that I never made any payments to them at all on the alleged date of last payment. 2 minutes is far from enough time to adequately review an account. It is enough time, however, to check and make sure the name, account number, balance, address and date of last payment match what is on a computer screen, stamp your name in the "I, Stupid Robosigner do hereby certify..." area, sign it and hand it over to the notary.

Edited February 14, 2012 by usagi555

[Seadragon]

Your math is a tad bit off. There's 3600 seconds in an hour. An affidavit every 25 seconds would be about 144 affidavits an hour. If he signed an affidavit every minute, he'd sign 60 per hour.

But I agree with you. He has to take breaks. Even if he's signing one affidavit every minute, he's not reading them. Nor is he reviewing the records for each account related to each affidavit.

Then signs 300 really fast gets up a flirts with the ditsy girl 2 cubicles over.

Then signs 600 because he is gonna call in sick tomorrow because he made a date with the girl.

You get the picture.

The best would get a copy of the injunction and request judicial notice. and to sweeten it. notify the brent judge that they are violating and at it out of state.

[VLDCA]

Then signs 300 really fast gets up a flirts with the ditsy girl 2 cubicles over.

Then signs 600 because he is gonna call in sick tomorrow because he made a date with the girl.

You get the picture.

That affidavit looks like the one I received from Midland except mine was singed by the ditsy girl yours was flirting with!!! LOL

[KentWA]

Please tell me you have counter claims for FDCPA already filed. This looks exactly like the Brent affidavit. The court in Brent ruled that just submitting the affidavit was an FDCPA violation. If it was me with counter claims I would file for MSJ leading with Brent as case law. If I had not filed counter claims I would amend to add them, then MSJ.

[legaleagle]

1. I am employed as a Spe******t and am a custodian of records for Midland Credit Management, Inc. ("MCM"), servicer of this account on behalf of plaintiff.

Good for you. I thought custodians cleaned the toilets at night. And why can't you spell spe******t?

I am a competent person over eighteen years of age,

That remains to be seen

and make the statements herein based upon personal knowledge of the recordkeeping systems maintained on plaintiff's behalf.

Maintained by who?

Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's GX MXXXX account XXXXXXXXXXXXXX (MCM Number XXXXXX) (hereinafter "the account").

That's your opinion. This is an unproven fact, and your statement to the contrary holds no wieght in a court.

I have possession of the books and records pertaining to the account and am authorized to make this affidavit on plaintiff's behalf.

I have books and records, too. And a few CDs. What does that prove?

2. I am familiar with the manner and method by which MCM creates and maintains its normal business books and records.

Too bad you don't have access to the records of the original creditor.

The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. The record or compilation was made at or near the time of the act or event or reasonably soon thereafter.

What? Would you mind translating that mess for me?

The relevant financial information concerning the account includes the following:

3. The account shows that the defendant(s) owe(s) a balance of $5XXX.XX.

That's funny, my records show a zero balance. Guess we'll have to let a jury decide who owes who what.

4. Upon information and belief, and based upon MCM's business records: 1) Debtor Person opened the account with GX MXXXX on date; 2) the last payment posted to the account on 2007-XX-XX and 3) the account was charged off on 2007-XX-XX.

Your business records don't count. You didn't issue the credit card.

5. The defendant(s) failed to make payments on the acccount; demand has been made for defendant(s) to make payment of the balance owing on the account described herein more than thirty (30) days prior to making this affidavit; and the attorneys representing plaintiff were retained for the purpose of collecting the delinquent debt owed on the account set out above.

Good for them. They aren't getting a dime from me, ever.

6. MCM's business records do not indicate that the defendant is a minor or mentally incapacited person.

It should, I am totally insane and love to fight junk debt buyers in court. If I can prove I'm crazy, does that mean I don't have to pay?

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

I bet you do, you disinterested, unbiased party. What would happen if you refused to sign the affidavit? Can you spell unemployed?

[VLDCA]

LegalEagle You broke it down beautifully!!

[khub1102]

Yes, legaleagle, BEAUTIFUL Indeed! Thank you!

AntiqueDave, definitely!

Coltfan, I agree! Love it!

VLDCA,

KentWA, I have a consumer attorney that is on it! With filing in the wrong county, them not answering a validation letter, with them making calls after a cease and desist letter, with them waiting so long after a complaint was filed to be served, and the robo affidavit, I think we have a few counterclaims.....

Seadragon, you are right!

BTO429, I think so too!

Thank you ALL!