hardly any debt validation given, but taken to court

[stormie]

First of all, I'd like to say that you guys are doing a great job here.

Just a brief FYI about me - I already fought one JDB "LVNV Funding" and had the case dismissed when I countersued them for $6,000 on both State and FDCPA violations. They decided to drop the case, since they were only requesting $3,500.

In case anyone is interested, I will post the details of that case up soon.

But now, I have Midland Funding, LLC after me (different case)- they served me with papers when I was expecting a package from the post office.

Problem with Midland is that when they sent me the initial letter saying that I owe 2,800, they did not back this up with any type of proof whatsoever. So when I asked them for a validation letter, they sent me a copy of a statement (from a bank that had been faxed to them) that I have never seen before.

The statement had my name and an account number, a principle balance, and accruing interest, but no sort of purchases, itemizations or anything like that.

When I wrote them back to ask for an itemization and about the SOL, (I wanted to see a cancelled check by me) they basically took me to court and had me served with papers. They never provided me with any details.

Have they violated my rights? Do I have a case against them? I racked up a few good FDCPA violations that I can sue them on (just like I did with LVNV), but I can't find the answer to "if a bank statement without any sort of itemizations and original signed loan agreements" constitutes as debt validation.

Thanks a lot for your help!

[usagi555]

If it didn't have your address on the statement, you might be able to argue something, but it would be weak IMO. It might get a lot stronger if it turned out that the real defendant was somebody who has the same or similar first and last names, or if it was ID theft and another address was listed on the account.

Validation: Yup, you're the right person and yup, the amount is correct and since we're a JDB, here's who the OC was.

[stormie]

If it didn't have your address on the statement, you might be able to argue something, but it would be weak IMO. It might get a lot stronger if it turned out that the real defendant was somebody who has the same or similar first and last names, or if it was ID theft and another address was listed on the account.

Validation: Yup, you're the right person and yup, the amount is correct and since we're a JDB, here's who the OC was.

I doubt it constitutes as proper validation - especially in New York State. I plan to fight this like there is no tomorrow - so sit back and watch.

[usagi555]

I doubt it constitutes as proper validation - especially in New York State. I plan to fight this like there is no tomorrow - so sit back and watch.

Maybe not in NY State, which I know next to nothing about when it comes to consumer protection and DC laws, but the FDCPA requires very little for validation.

(a) that the

debt, or any portion thereof, is disputed, or that the con-

sumer requests the name and address of the original credi-

tor, the debt collector shall cease collection of the debt,

or any disputed portion thereof, until the debt collector

obtains verification of the debt or any copy of a judgment,

or the name and address of the original creditor, and a copy

of such verification or judgment, or name and address of

the original creditor, is mailed to the consumer by the debt

collector.

[Huey Pilot]

Stormie,

Here is a link to some start to finishes with New York Law:

Philip D. Stern & Associates, LLC - Cases

One of my favorite articles firing shots across Midlands bow in New York State:

Judge Tosses Midland Funding

Best,

HP

[stormie]

Thanks guys, I appreciate your help.

I am going to fight this, I will not back down. I'll let you know how I do.

[Coltfan1972]

Midland can be beat pretty easy, but they did not violate the FDCPA with their DV response. In fact, by you sending them a second request demanding they provide you with items they are under zero obligation to provide you with in the DV stage is probably the reason they sued you.

They probably figured you had no clue about the law and would be an easy target. If you beat one JDB you can beat Midland. They are all pretty much the same and all have the same admissible evidence issues.

Good luck, but the DV requirement is an even lower threshold than prima facie evidence.

[legaleagle]

The information you requested should be asked for in discovery. What court are you in? There are different rules for different levels. We cannot help until we know this information.

[stormie]

The information you requested should be asked for in discovery. What court are you in? There are different rules for different levels. We cannot help until we know this information.

I am in civil court, new york city.

[legaleagle]

Okay, be advised that the rules for City Court differ from Supreme Court. Don't know which level you were in last time. Who is the OC?

[stormie]

Okay, be advised that the rules for City Court differ from Supreme Court. Don't know which level you were in last time. Who is the OC?

Chase Bank USA, the amount is for $2,800, and the JDB doing the suing is Midland funding.

Are we still able to use FDCPA ruling with a city court?

[BV80]

Chase Bank USA, the amount is for $2,800, and the JDB doing the suing is Midland funding.

Are we still able to use FDCPA ruling with a city court?

Midland validated the debt. All the FDCPA requires for validation is the name of the original creditor and the amount of the debt.

That being said, Midland has to prove they own your debt. They can probably provide a bill of sale that states they purchased "accounts" from Chase. That's not good enough. They have to show that your specific account was included in that sale.

[stormie]

Midland validated the debt. All the FDCPA requires for validation is the name of the original creditor and the amount of the debt.

That being said, Midland has to prove they own your debt. They can probably provide a bill of sale that states they purchased "accounts" from Chase. That's not good enough. They have to show that your specific account was included in that sale.

Is this why people say that Midland is easy to dismiss? Do they usually not have this information?

[usagi555]

Is this why people say that Midland is easy to dismiss? Do they usually not have this information?

That is one reason. The other is that they cannot authenticate any of the OC's records without getting somebody from the OC into court to testify. That ain't gonna happen.

[stormie]

That is one reason. The other is that they cannot authenticate any of the OC's records without getting somebody from the OC into court to testify. That ain't gonna happen.

Can they authenticate it in writing thru some kind of a sworn statement?

Well, I'm getting a bit nervous as I was able to find many violations - both NY and FDCPA, and literally countersued Midland for a substantial amount I was able to "rack up" - totalling a good $10,000

For instance, I found out that attempting to collect attorney and other fees not authorized by any agreement is a violation of FDCPA, but it is also a violation of NYS law. So I was able to countersue for this.

Also, the fact that Midland identifies as both, "purchaser and assignee" is a violation of FDCPA. (Check Gearing v. Check Brokerage Corp 233 F.3d 469 (7th Cir. 2000)): Collection Agency can NOT be BOTH purchaser and 'assignee'. (Midland identifies exactly as that on the summons).

Anyways, I found many little things for which to counter-sue, and submitted and filed, two Fridays ago.

So anyhoo, I'm kind of wondering if I shot myself in the foot by counter-suing for such a substantial amount? They are taking so long to respond and that makes me noy-vous, sort of like being in the eye of the hurricane.

Do you think that they are taking so long because they're gathering the necessary documents to slam dunk me till kingdom come?

Edited February 25, 2012 by stormie

[usagi555]

Can they authenticate it in writing thru some kind of a sworn statement?

Well, I'm getting a bit nervous as I was able to find many violations - both NY and FDCPA, and literally countersued Midland for a substantial amount I was able to "rack up" - totalling a good $10,000

For instance, I found out that attempting to collect attorney and other fees not authorized by any agreement is a violation of FDCPA, but it is also a violation of NYS law. So I was able to countersue for this.

Also, the fact that Midland identifies as both, "purchaser and assignee" is a violation of FDCPA. (Check Gearing v. Check Brokerage Corp 233 F.3d 469 (7th Cir. 2000)): Collection Agency can NOT be BOTH purchaser and 'assignee'. (Midland identifies exactly as that on the summons).

Anyways, I found many little things for which to counter-sue, and submitted and filed, two Fridays ago.

So anyhoo, I'm kind of wondering if I shot myself in the foot by counter-suing for such a substantial amount? They are taking so long to respond and that makes me noy-vous, sort of like being in the eye of the hurricane.

Do you think that they are taking so long because they're gathering the necessary documents to slam dunk me till kingdom come?

They won't be able to win at trial with a sworn statement if NY's rules of civil procedure mirror the federal rules AND you properly object. They'd have to try for a summary judgment, which you could beat. Read up on how your state handles hearsay, hearsay exceptions and testimony at trial.

If there is any legitimate basis to your counterclaims, Midland may very well run, but they'll need your permission to do it.

[Coltfan1972]

Can they authenticate it in writing thru some kind of a sworn statement?

Sure they can, the day that sworn statement can raise its right hand, swear to tell the truth, plop their piece of sworn statement rear in the witness box, testify and then submit to cross examination from you.

If they have a sworn statement that can do all that, in other words they have found a talking piece of paper, you bet they can use it.

[legaleagle]

Well, I'm getting a bit nervous as I was able to find many violations - both NY and FDCPA, and literally countersued Midland for a substantial amount I was able to "rack up" - totalling a good $10,000

Be advised that the FDCPA gives you 1,000 flat fee, not 1,000 per violation.

For instance, I found out that attempting to collect attorney and other fees not authorized by any agreement is a violation of FDCPA, but it is also a violation of NYS law. So I was able to countersue for this.

You would have to establish that there was no such agreement. Any generic Chase credit card agreement provides for this. I'm sure they will come up with one.

Also, the fact that Midland identifies as both, "purchaser and assignee" is a violation of FDCPA. (Check Gearing v. Check Brokerage Corp 233 F.3d 469 (7th Cir. 2000)): Collection Agency can NOT be BOTH purchaser and 'assignee'. (Midland identifies exactly as that on the summons).

This seems misplaced. Midland is not acting as a collection agency here. Purchaser and Assignee are basically the same thing. Assignees assume all the rights of the original creditor in return for payment. Defined as "a person to whom a right or property is legally transferred."

[stormie]

Well midland responded to the court and mailed me a copy, but all they sent was the same thing I did: A general denial of all of my counterclaims. Nothing else.

So what do you guys think? Will they bombard me during pre-trial? What would their next step of action be? Our court date, by the way is next week on friday

[Huey Pilot]

They won't be able to win at trial with a sworn statement if NY's rules of civil procedure mirror the federal rules AND you properly object. They'd have to try for a summary judgment, which you could beat. Read up on how your state handles hearsay, hearsay exceptions and testimony at trial.

If there is any legitimate basis to your counterclaims, Midland may very well run, but they'll need your permission to do it.

USAGI555,

What do you consider to be a "Proper Objection"? Is that the objection filed with the answer to the Complaint or is that a separate Objection to their hearsay that has to be filed. I've heard from other defendants that if they didn't plead an objection early in their opening statements that rights to object later would not be preserved especially if going to appeal. Could anyone comment on this.

HP

[First Timer]

USAGI555,

What do you consider to be a "Proper Objection"? Is that the objection filed with the answer to the Complaint or is that a separate Objection to their hearsay that has to be filed. I've heard from other defendants that if they didn't plead an objection early in their opening statements that rights to object later would not be preserved especially if going to appeal. Could anyone comment on this.

HP

Proper objection is understanding why their evidence is inadmissible. You need to read up on the rules of evidence for civil procedure in your state. The common reasons for objecting to evidence in Jdb cases are irrelevance, hearsay, hearsay within hearsay, lack of personal knowledge, Exceptions to hearsay, Authentication or identification requirements.

Then you have to understand the rules of civil procedure. WHEN and HOW you can object. Just one example:

1. Plaintiff moves to enter an exhibit - a bill of sale transferring accounts from an OC to the JDB.

2. You would say, "Objection your honor. Irrelevant and lacks authentication. May it please the court, I would like to make oral argument on each objection... (Judge grants request)

3. The bill of sale is irrelevant to these proceedings. Nowhere does the document state the defendants name or the alleged account within the document. There is nothing tying the document to the defendant or the alleged account any more than it would tie or any person or any account to the bill of sale. The only thing this document proves is that the plaintiff buys junk debt.

4. The bill of sale lacks self-authentication. The signatures are illegible, there is nothing in the document that shows that this document is what the plaintiff purports it to be. The document is not notarized. The plaintiff did not originate the document and thus cannot attest to it's validity. Move the the exhibit be excluded on these grounds...

Edited March 2, 2012 by First Timer

[BTO429]

The above is the exact reason I say wait till the court date so you can openly object verbally to what ever they try to pull out for evidence.

If you object verbally open the spot with your reason why it put them in the position of not being prepared for an objection.

Read your states rules of trial procedure to make sure objections do not have to be filed in written form before trial. Even so if they try to admit something they did not provide to you during discovery then they can not pull it out as evidence later, you object if they try.

[Huey Pilot]

Proper objection is understanding why their evidence is inadmissible. You need to read up on the rules of evidence for civil procedure in your state. The common reasons for objecting to evidence in Jdb cases are irrelevance, hearsay, hearsay within hearsay, lack of personal knowledge, Exceptions to hearsay, Authentication or identification requirements.

Then you have to understand the rules of civil procedure. WHEN and HOW you can object. Just one example:

1. Plaintiff moves to enter an exhibit - a bill of sale transferring accounts from an OC to the JDB.

2. You would say, "Objection your honor. Irrelevant and lacks authentication. May it please the court, I would like to make oral argument on each objection... (Judge grants request)

3. The bill of sale is irrelevant to these proceedings. Nowhere does the document state the defendants name or the alleged account within the document. There is nothing tying the document to the defendant or the alleged account any more than it would tie or any person or any account to the bill of sale. The only thing this document proves is that the plaintiff buys junk debt.

4. The bill of sale lacks self-authentication. The signatures are illegible, there is nothing in the document that shows that this document is what the plaintiff purports it to be. The document is not notarized. The plaintiff did not originate the document and thus cannot attest to it's validity. Move the the exhibit be excluded on these grounds...

Each of you statements is right on and exactly what we need to preserve. Don't want to loose the opportunity to raise said objections orally in Arbitration or during appeals.

That being said, is there a formal document I can provide reserving those rights to objections prior to going to Arbitration or Court or is that a moot point. (Maybe opening argument? Trial Brief?)

Thoughts.

[stormie]

Well, Midland Funding keeps sending me copies of the court summons in the mail. I have seen that summons 10 times now, and today, I received another such copy even though I have already answered a general denial and even countersued them (the first time when I had been served)

I am thinking that Midland is bluffing for me to feel fear and make a payment. (This will not happen as I will remain steadfast in my general denial).

But am I right in thinking that their constant copies of the court summons being mailed to my home is them hoping that I will cave in and make a payment?

[legaleagle]

Let them waste their postage. Make sure you have a way to keep up to speed on your case, it may be available on line. The plaintiff is the aggressor, the next move is up to them. If they wait too long, you can ask for a dismissal due to lack of diligence.