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Being Sued by Midland Funding LLC


creditstudent38
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1. Who is suing you? Pollack and Rosen attorneys for Midland Funding LLC assignee of BofA

2. For how much? ~5300

3. Who is the original creditor? BofA

4. How do you know you are being sued? served at parents' house

5. How were you served? Were you served? see above

6. What was your correspondence with the people suing you before you think you were being sued? sent a notice of prelegal review, mailer

7. Where do you live? FL

8. When is the last time you paid on this account? 10/2008

9. What is the status of your case ? motion to dismiss denied, amended complaint, answer to amended complaint, objection hearsay pending

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Yes, after suit was filed via certified mail (didn't know better.)

12. Does your summons require a response in writing? Did you receive an interrogatory (questionnaire) regarding the lawsuit? recv'd summons to answer complaint for breach of contract, etc.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? credit card statements from BofA bearing my name and showing last payment and a one-page affidavit of BofA affiant (not bearing my name or account#) as bill of sale assignment, I admitted to BofA debt but then redacted.

14. What is the SOL on the debt? I think it's 5 years here in FL.

Okay...so here's a quick summary, recv'd summons at parents house in OCt 2011, filed for an extension to seek counsel 90 days GRANTED, decided since I cant afford attorney, i'm PRO SE.

Consulted with area attorneys (couldnt afford them, but they gave me some good advice, thats how I learned about extension :])

Then did research, research, research. Filed my own sloppy answer pro se, admitting to bofa debt, but with a bunch of affirmative defenses, mainly lack of privity (they have no contract) and hearsay (3rd party, robo signed volume purchase unnamed affidavit).

Motion to dismiss GRANTED, disposed by judge with provision to amend complaint, 30 days. They answered 45 days later. I made a motion to dismiss for failure to amend on time. DENIED.

So....I answer amended complaint with objections, objections, hearsay, restate affirmative defenses, unjust enrichment, lack of privity, that previous conditions have not been met or waived.

Then I call attorneys representing midland, and offer to settle for 30%-50% of original debt. They agree on phone. No fax or email, no written offer.

Well, I'm tired but I will put up a fight as they can see.

I object on principal, them buying old debts for pennies on the dollar and then trying to collect the full amount. And now they waste my time and energy, and don't do what they say they are going to do. They said they would fax or mail a settlement offer, but I never rec'vd it. I would have much rather dealt with the OC.

Any advice? Well at least I answered and they didnt get their default judgement like they were counting on. These people file hundreds of suits a year in my county alone! I've seen the dockets and they vary, clogging the system, but anyone else think this is hearsay? this unnamed affidavit bill of sale assignment? Like I said I'm objecting on hearsay and lack of privity (them not having a signed contract with me, and the bill of sale is unnamed.. )

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1. Who is suing you? Pollack and Rosen attorneys for Midland Funding LLC assignee of BofA

2. For how much? ~5300

3. Who is the original creditor? BofA

4. How do you know you are being sued? served at parents' house

5. How were you served? Were you served? see above

6. What was your correspondence with the people suing you before you think you were being sued? sent a notice of prelegal review, mailer

7. Where do you live? FL

8. When is the last time you paid on this account? 10/2008

9. What is the status of your case ? motion to dismiss denied, amended complaint, answer to amended complaint, objection hearsay pending

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Yes, after suit was filed via certified mail (didn't know better.)

12. Does your summons require a response in writing? Did you receive an interrogatory (questionnaire) regarding the lawsuit? recv'd summons to answer complaint for breach of contract, etc.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? credit card statements from BofA bearing my name and showing last payment and a one-page affidavit of BofA affiant (not bearing my name or account#) as bill of sale assignment, I admitted to BofA debt but then redacted.

14. What is the SOL on the debt? I think it's 5 years here in FL.

Okay...so here's a quick summary, recv'd summons at parents house in OCt 2011, filed for an extension to seek counsel 90 days GRANTED, decided since I cant afford attorney, i'm PRO SE.

Consulted with area attorneys (couldnt afford them, but they gave me some good advice, thats how I learned about extension :])

Then did research, research, research. Filed my own sloppy answer pro se, admitting to bofa debt, but with a bunch of affirmative defenses, mainly lack of privity (they have no contract) and hearsay (3rd party, robo signed volume purchase unnamed affidavit).

Motion to dismiss GRANTED, disposed by judge with provision to amend complaint, 30 days. They answered 45 days later. I made a motion to dismiss for failure to amend on time. DENIED.

So....I answer amended complaint with objections, objections, hearsay, restate affirmative defenses, unjust enrichment, lack of privity, that previous conditions have not been met or waived.

Then I call attorneys representing midland, and offer to settle for 30%-50% of original debt. They agree on phone. No fax or email, no written offer.

Well, I'm tired but I will put up a fight as they can see.

I object on principal, them buying old debts for pennies on the dollar and then trying to collect the full amount. And now they waste my time and energy, and don't do what they say they are going to do. They said they would fax or mail a settlement offer, but I never rec'vd it. I would have much rather dealt with the OC.

Any advice? Well at least I answered and they didnt get their default judgement like they were counting on. These people file hundreds of suits a year in my county alone! I've seen the dockets and they vary, clogging the system, but anyone else think this is hearsay? this unnamed affidavit bill of sale assignment? Like I said I'm objecting on hearsay and lack of privity (them not having a signed contract with me, and the bill of sale is unnamed.. )

This is all hearsay. Any immediate actions pending that need documents, appearances, or coordination the Opposing Attorney.

Posted a strategy earlier on another thread. In the mean time do a search on Florida Lawsuits on this thread. or Midland + Florida and start reading on how others are approaching similar situations and put your questions up for response.

HP

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  • 4 weeks later...
This is all hearsay. Any immediate actions pending that need documents, appearances, or coordination the Opposing Attorney.

Posted a strategy earlier on another thread. In the mean time do a search on Florida Lawsuits on this thread. or Midland + Florida and start reading on how others are approaching similar situations and put your questions up for response.

HP

They filed a MSJ (!) what? and tried to say that there are no facts of material evidence in dispute (what?), along with making a motion to strike my affirmative defenses as not complying with FL civil procedure.

HELLO! I have disputed their a)standing to sue b)insufficient affidavit c)lack of a contract and my affirmative defenses say as much and more. And I have filed a motion for summary judgment of my own for their lack of standing to sue with a vague affidavit (citing Midland v. Brent)...

I opposed their MSJ citing material facts in dispute (filed opposition to MSJ)..

Do I need to motion to oppose their strike of my affirmative defenses too?

And while I'm at it, do I motion to strike their affidavit?

this all happened within last 2-3 weeks or so btw...im thinking if i motion to strike it should be soon right? or do i wait to hear from judge about our opposing MSJ's?

or do i instead of trial en novo, just ask to resubmit my answer to their amended complaint, and deny all/most claims more specifically?

I know I got my point across in writing, it's clear their trying to pull a fast one with that affidavit!

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They filed a MSJ (!) what? and tried to say that there are no facts of material evidence in dispute (what?), along with making a motion to strike my affirmative defenses as not complying with FL civil procedure.

HELLO! I have disputed their a)standing to sue b)insufficient affidavit c)lack of a contract and my affirmative defenses say as much and more. And I have filed a motion for summary judgment of my own for their lack of standing to sue with a vague affidavit (citing Midland v. Brent)...

I opposed their MSJ citing material facts in dispute (filed opposition to MSJ)..

Do I need to motion to oppose their strike of my affirmative defenses too?

And while I'm at it, do I motion to strike their affidavit?

this all happened within last 2-3 weeks or so btw...im thinking if i motion to strike it should be soon right? or do i wait to hear from judge about our opposing MSJ's?

or do i instead of trial en novo, just ask to resubmit my answer to their amended complaint, and deny all/most claims more specifically?

I know I got my point across in writing, it's clear their trying to pull a fast one with that affidavit!

I would oppose their motions to strike anything or Midland will eliminate your defense totally.

Take a look at this Sample approach to striking Midlands Affidavit. It might be useful as a template to your approaches.

Debt Buyer Sample Motion to Dismiss

HP

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My head is spinning with all of this. I did read the Sheridan v. Midland case and tho a bit complicated I think I could put something similar together, I just need to read the FL civil procedure and go to FloridaDebtor for more info. (Sheridan won a countersuit against Midland) If they didnt use thug tactics and aggressive litigation and just settled for something reasonable, I wouldnt do this. But they have really aggravated me. This is just a basic idea of what Im thinking of filing based on the Sheridan case. While I dont always agree with scrapping it out with these people, its beats just rolling over. I appreciate your advice.

I've come up with basic strategy to show my displeasure with how these JDBs do business: Sheridan inspired me...

******

IN THE COUNTY COURT IN AND FOR

XXXXXXXXXXXXXXXXXXX, FLORIDA

CASE NO: XXXXXXXXXXXXXXXXXXX

MIDLAND FUNDING LLC

Plaintiff,

XXXXXXXXXXXXXXXXXXX

Attorneys,

vs.

XXXXXXXXXXXXXXXXXXXXXX MEMORANDUM AND COUNTERSUIT

Defendant

_______________________________________________________________

Comes now, Defendant XXXXXXXXXXXXXXXXX, with a memorandum of prior case law that justifies.

1. Affirmative Defenses

2. Striking of Evidence as Hearsay

3. Lack of Privity

4. Statute of Frauds

5. Opposing Summary Judgment

And countersuit,

Defendant further claims that Plaintiff has engaged in:

Abuse of Process

Frivolous Lawsuit

Malicious Prosecution

Willful Infliction of Emotional Distress

Seeking damages.

Mailing and postage costs

30.00

Gas to and from courthouse:

30 miles @IRS rate of 50 cents a mile

15.00 + gas to and from lawyer meeting 30 miles 15.00

Urgent care Visit for stress related health problems, Pneumonia

150.00

Anxiety Medication

50.00

Lawyer consultation fee and legal research:

$ 1500.00

$ 1760.00

******

I've done my own research and never hired a lawyer but I'm a graduate student and trained researcher and my lost time and energy is worth something. How do I say that? Also how much is my health and peace of mind worth?

I'm confused, stressed out, tried to settle (like chumming sharks) but now I really must fight back I think. I'm not sure here in FL about civil procedure if I can countersuit at this stage in the game, tho i reserved that right in my affirmative defenses which they tried to quash with MSJ. It might take a few days of research to get all my notes together for a proper filing but i dunno ...do you guys/gals think it's worth it? (they offered to settle for 4800 on a 6600 debt). A week earlier it was 3300 and they now say that offer “is no longer available.” Pfffft.

and my case is at a MSJ counter-msj by me status based on their lack of standing to sue, similar to the Midland v. Brent case although the affidavit is not as blatantly wrong (but it's not even notarized! and I think thats yet another hole in this case) well, im doing okay "poor se" ive gotten this far , maybe i'll win eventually.

i think the reason they are being c**** is because these are/were my two highest balance cards, how do hit em in the nose or stab them in the gills now?

also i might be judgement proof because i have little assets just a crappy car and a computer, and all my funds are student financial aid (mostly student loans, small grants, small scholarship)... for this I was thinking of putting all of it into a 529 plan to ensure my future studies (529 is IRS code for a qualified tuition school fund) but I think the 529 plan affects my financial aid as an "asset" but FL statute code 222.22 says its "exempt"/"judgment proof" anyway. Should i do this now?

i want to get all this behind me becaue i might be travelin out of state or overseas for a paid internship soon...

should I just go (leave my current residence for greener pastures, better jobs,) and mail it in or phone it in from wherever? I hate letting these two cc debts drag me down like this...

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My head is spinning with all of this. I did read the Sheridan v. Midland case and tho a bit complicated I think I could put something similar together, I just need to read the FL civil procedure and go to FloridaDebtor for more info. (Sheridan won a countersuit against Midland) If they didnt use thug tactics and aggressive litigation and just settled for something reasonable, I wouldnt do this. But they have really aggravated me. This is just a basic idea of what Im thinking of filing based on the Sheridan case. While I dont always agree with scrapping it out with these people, its beats just rolling over. I appreciate your advice.

I've come up with basic strategy to show my displeasure with how these JDBs do business: Sheridan inspired me...

******

IN THE COUNTY COURT IN AND FOR

XXXXXXXXXXXXXXXXXXX, FLORIDA

CASE NO: XXXXXXXXXXXXXXXXXXX

MIDLAND FUNDING LLC

Plaintiff,

XXXXXXXXXXXXXXXXXXX

Attorneys,

vs.

XXXXXXXXXXXXXXXXXXXXXX MEMORANDUM AND COUNTERSUIT

Defendant

_______________________________________________________________

Comes now, Defendant XXXXXXXXXXXXXXXXX, with a memorandum of prior case law that justifies.

1. Affirmative Defenses

2. Striking of Evidence as Hearsay

3. Lack of Privity

4. Statute of Frauds

5. Opposing Summary Judgment

And countersuit,

Defendant further claims that Plaintiff has engaged in:

Abuse of Process

Frivolous Lawsuit

Malicious Prosecution

Willful Infliction of Emotional Distress

Seeking damages.

Mailing and postage costs

30.00

Gas to and from courthouse:

30 miles @IRS rate of 50 cents a mile

15.00 + gas to and from lawyer meeting 30 miles 15.00

Urgent care Visit for stress related health problems, Pneumonia

150.00

Anxiety Medication

50.00

Lawyer consultation fee and legal research:

$ 1500.00

$ 1760.00

******

I've done my own research and never hired a lawyer but I'm a graduate student and trained researcher and my lost time and energy is worth something. How do I say that? Also how much is my health and peace of mind worth?

I'm confused, stressed out, tried to settle (like chumming sharks) but now I really must fight back I think. I'm not sure here in FL about civil procedure if I can countersuit at this stage in the game, tho i reserved that right in my affirmative defenses which they tried to quash with MSJ. It might take a few days of research to get all my notes together for a proper filing but i dunno ...do you guys/gals think it's worth it? (they offered to settle for 4800 on a 6600 debt). A week earlier it was 3300 and they now say that offer “is no longer available.” Pfffft.

and my case is at a MSJ counter-msj by me status based on their lack of standing to sue, similar to the Midland v. Brent case although the affidavit is not as blatantly wrong (but it's not even notarized! and I think thats yet another hole in this case) well, im doing okay "poor se" ive gotten this far , maybe i'll win eventually.

i think the reason they are being c**** is because these are/were my two highest balance cards, how do hit em in the nose or stab them in the gills now?

also i might be judgement proof because i have little assets just a crappy car and a computer, and all my funds are student financial aid (mostly student loans, small grants, small scholarship)... for this I was thinking of putting all of it into a 529 plan to ensure my future studies (529 is IRS code for a qualified tuition school fund) but I think the 529 plan affects my financial aid as an "asset" but FL statute code 222.22 says its "exempt"/"judgment proof" anyway. Should i do this now?

i want to get all this behind me becaue i might be travelin out of state or overseas for a paid internship soon...

should I just go (leave my current residence for greener pastures, better jobs,) and mail it in or phone it in from wherever? I hate letting these two cc debts drag me down like this...

I would definitely do all you can to get your money someplace where it can't be frozen or extracted. Set up a Social Security Account on the internet in another state. They might think your a dependent and the money is untouchable. Name the account: (Social Security Account Credit Student38)

I would offer them $1500.00 and tell them next week it will be $1000.00 and it keeps going down after that. Explain your totally encumbered, have absolutely no attachable assets, presently have xx amt of gov loans that get attached first, and have to borrow money to come up with your offer. You can easily run up $10,000.00 for them on contingency attorney fee's that Midland won't pay them unless the collect money which is impossible because you don't have any and will just ask for leave to file BK. I bet they will take the offer. Make sure you put it in writing. It's not something you will file with the court.

I absolutely detest Midland and what they do to people. It's criminal.

HP

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it seems like just to survive this without bankruptcy i should really think about plan 529 and 530 (college savings and medical savings) because it looks like im really going to need it and the protection it affords in my otherwise vulnerable position.

florida statute 222.22 states that both college savings and medical savings are exempt from creditors. I have neither right now, but my pittance of financial aid (mostly student loans, small grants, small scholarship) is all i have to survive on..i even thought about purchasing an RV to live in because they cant take that either (possible homestead exemption).Recreational Vehicle As Homestead Property : Florida Asset Protection

Florida Statutes 222.22 - Exemption of assets in qualified tuition programs, medical savings accounts, Coverdell education savings accounts, and hurricane savings accounts from legal process :: Lawserver

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Hey CreditStudent38,

Been reading through your post here. I'm going to suggest you check this thread out.

http://www.creditinfocenter.com/forums/there-lawyer-house/311598-court-date-one-week-away-need-advice-if-not-too-late.html

It's not with Midland, it's with Equable Ascent (similar devil), but the case law and general discussion in the thread may give you some valuable insight as to a direction *you* may want to take in regards to your case.

The thread just kind of ends but is continued - the OP got a decision of Dismiss with Prejudice, but you should read it all for yourself.

You should fight this. It's criminal.

Edited by RockDaddy
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If you decide to fight, you have to write an Opposition to Plaintiff's Motion for Summary Judgment. You would attack their ownership of the debt showing they have no standing to sue. You can also attack their documents as hearsay.

Research FL case law regarding a valid assignment and authentication of documents. There are samples of oppositions on these boards. Just do a search.

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If you decide to fight, you have to write an Opposition to Plaintiff's Motion for Summary Judgment. You would attack their ownership of the debt showing they have no standing to sue. You can also attack their documents as hearsay.

Research FL case law regarding a valid assignment and authentication of documents. There are samples of oppositions on these boards. Just do a search.

Exactly as stated here. They lack standing.

And this... this is really funny... and tried to say that there are no facts of material evidence in dispute.

Oh really? How about the *material* evidence that they actually have the standing to collect this debt. Where are the documents that prove that conclusively? I mean without it, they could potentially sue *everybody* in Florida and win right? Makes me laugh and cringe at the same time, and not in a good way.

Live BV80 said, there's lots on this board to fuel your fire.

Go get'em...

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