Midland Funding Question

[eas21]

I'm so glad that I found this site! There is so much information on here that has helped me more than I could have ever imagined. So I've had the honor to be sued by Midland funding as I know a lot of others have as well.

I went through the initial request for admissions and discovery process without admitting any guilt. In my discovery request to them, I requested that they provide the original contract to prove that they in fact do own the debt and that it is actually my debt.

They sent me back a bunch of credit card statements as well as a bill of sale. This bill of sale had no reference to me whatsoever. Not my name, account number, nothing.

At this point, I don't know what to do next. Could anyone lead me in the right direction at this point. Obviously, they have no proof of anything, but I don't know what the proper legal step is from here.

Thanks in advance for any advice that you can give.

[Coltfan1972]

Well they will most likely be filing for summary judgement against you very soon. It's just what they do. If you know how to file a summary judgement motion you could beat them to the punch and file one against them.

You could argue there are no disputed facts and their evidence still can't link you to an account they allegedly own (which is true). What most do is wait around a few months with out of sight out of mind and then get hit with summary judgement. Then they spend the next two weeks here for about five hours a day going over draft oppositions.

Midland are basically Somali pirates. They boat around looking for the weakest of the weak and then attack. However, once in blue moon, just like the pirates, they go brain dead and pick a fight with the wrong people. Of course that usually ends with dead pirates.

So one way or another, most likely you are going to be dealing with summary judgement. You can move to strike (preclude, in liminie) the bill of sale, file your own motion for summary judgement, hit them with more discovery that attacks the bill sale (like admissions asking them to admit the obvious, like no account numbers, name etc...) or wait around. Pretty much all there is left. You can request a trial date (that is what I do) but don't expect to ever see Midland inside a courtroom for an actual trial.

That would actually require them to fight based on facts, rules of evidence and the merits of their case/evidence; and that ain't happening.

Edited August 17, 2012 by Coltfan1972

[eas21]

Thanks so much for your lengthy reply. It gave me a lot of information on what to research next.

As far as your pirates reference, I'm hoping I'm one of the one's they shouldn't have ever messed with, lol.

So at this point, in your opinion, would it be best for me to go ahead and beat them to the punch and file a motion for summary judgement? And you said the following:

"You can move to strike (preclude, in liminie) the bill of sale, file your own motion for summary judgement, hit them with more discovery that attacks the bill sale (like admissions asking them to admit the obvious, like no account numbers, name etc...) or wait around. Pretty much all there is left. You can request a trial date (that is what I do) but don't expect to ever see Midland inside a courtroom for an actual trial. "

While I will do my own research also, if I choose to go this route, will I do all of the above, in that order? Strike bill of sale, file motion, more discovery?

Thanks again for all your help, I've read a lot of your posts here and you are a huge asset to this forum and help make it an awesome place!

[McLovin]

Midland are basically Somali pirates. They boat around looking for the weakest of the weak and then attack. However, once in blue moon, just like the pirates, they go brain dead and pick a fight with the wrong people. Of course that usually ends with dead pirates.

That is awesome!

[racecar]

Evidence to support summary judgment

Evidence need not be "admissible" but must at least be capable of "conversion at trial to admissible evidence."

¶17 We find Defendants' arguments reflect a basic misunderstanding of the nature of summary judgment process in Oklahoma courts. In this regard, the Oklahoma Supreme Court's pronouncements in [Copeland v The Lodge Enters., Inc., 2000 OK 36, 4 P.3d 695] are instructive:

While the mere contention that material facts are in dispute is not sufficient to defeat a plea for summary judgment, neither is the nonmovant to be held to the standard of producing forensic evidence. The nonmovant must merely "present something which shows that when the date of trial arrives, he will have some proof to support his allegations." For an item of evidentiary material to be insufficient to defeat a motion for summary judgment, it must either facially lack probative value or be incapable of conversion at trial to admissible evidence.

Copeland, 2000 OK 36 at ¶ 9, 4 P.3d at 699 (emphasis added; footnotes omitted) (quoting Davis v. Leitner, 1989 OK 146, ¶ 12, 782 P.2d 924, 926). In Davis, the Court stated that the evidentiary materials attached to a response to a motion for summary judgment "are not to be held to the standard of competent, admissible evidence." Davis, 1989 OK 146 at ¶ 13, 782 P.2d at 926.

¶18 Recent amendments to Oklahoma District Court Rule 13, 12 O.S. Supp. 2002, ch. 2, app. 1, which were in effect at the time Defendants sought summary judgment,1 reflect these pronouncements in Copeland and Davis. The amended rule omits the references to "admissible evidence" - a phrase which Defendants constantly brandished in their briefs below - replacing them with "acceptable evidentiary material." Rule 13(. The rule sets forth the procedure for challenging admissibility of evidentiary material submitted by another party when that material "does not appear to be convertible to admissible evidence at trial." Rule 13©(emphasis added).

JULIAN v. SECURED INVESTMENT ADVISORS, 2003 OK CIV APP 81, 77 P.3d 604

Movant must show no question of fact that at least one element of claim is missing or prove each essential element of an affirmative defense.

¶3 To prevail as the moving party on a motion for summary adjudication, one who defends against a claim by another must either (a) establish that there is no genuine issue of fact as to at least one essential component of the plaintiff's theory of recovery or ( prove each essential element of an affirmative defense, showing in either case that, as a matter of law, the plaintiff has no viable cause of action. Akin v. Missouri Pacific R. Co., 1998 OK 102, 977 P.2d 1040.

GRAND LAKE MARINA, LTD v. GRAND RIVER DAM AUTHORITY, 2008 OK CIV APP 4, 177 P.3d 1104

Must be no material fact at issue and reasonable people must not be able to reach differing conclusions from the undisputed facts.

¶4 Summary judgment should be granted only if it is perfectly clear that there is no material fact at issue. Northrip v. Montgomery Ward and Co., 1974 OK 142, 529 P.2d 489. For summary judgment to be appropriate, the trial court must not only find there is no substantial controversy as to any material fact, but also that reasonable people could not reach differing conclusions from the undisputed facts. Even if the trial court anticipates that a directed verdict will be necessary, summary judgment must not deprive a litigant of the right to a jury trial of disputed facts. Flanders v. Crane Co., 1984 OK 88, 693 P.2d 602.

GRAND LAKE MARINA, LTD v. GRAND RIVER DAM AUTHORITY, 2008 OK CIV APP 4, 177 P.3d 1104

Burden is on moving party. Burden only shifts after prima facie case is made by moving party.

¶10 The burden is on the party moving for summary judgment to show entitlement to judgment as a matter of law. When the moving party has made a prima facie showing, the opposing party must contest this by showing facts that are in dispute. See, First National Bank & Trust Co. of Oklahoma City v. Nesbitt, 598 P2d 1197 (Okla. 1979).

SPEIGHT v. PRESLEY, 2008 OK 99, ___ P.3d ___.

Edited August 17, 2012 by racecar

[racecar]

Respondent can not create sham question of fact by filing affidavits that contradict prior sworn testimony by same witness.

¶ 14 Plaintiff conceded in his affidavit that he had given false testimony concerning the accident. He recanted his first statement that it happened about 5:00 p.m. In his July 2002 deposition, when asked if he knew what time the accident occurred, Plaintiff testified, “Not really.” Parties cannot thwart the purpose of summary judgment rules by creating affidavits that contradict their own depositions. Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir.1985). “t is well established that a party cannot create a genuine issue of fact by submitting an affidavit containing conclusory allegations which contradict plain admissions in prior deposition or otherwise sworn testimony.” Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir.1988). Under these rules, we conclude Plaintiff has not shown the facts are in dispute on this point.

POFF v. OKLAHOMA FARMERS UNION MUTUAL INSURANCE CO., 2006 OK CIV APP 3, 127 P.3d 646

Also see, BEVILLE v. CURRY, 2001 OK 1, 39 P.3d 754 at ¶18.

"¶30 When determining whether an affidavit may be disregarded because it attempts to create a sham issue of fact, the Court may consider whether the party was cross-examined during earlier testimony, whether the party had access to the evidence at the time of earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain. Ishmael v. Andrew, 2006 OK CIV APP 82, ¶16, 137 P.3d 1271, 1276. A trial court may disregard an affidavit purporting to create an issue of fact by directly contradicting prior deposition testimony during which the deponent was both cross-examined and had access to the information forming the basis for the affidavit at the time of the deposition. Savage v. Burton, 2005 OK CIV APP 106, 125 P.3d 1249.

TORTORELLI v. MERCY HEALTH CENTER, INC., 2010 OK CIV APP 105, __ P.3d __.

Oklahoma Standards different than Federal (but see 12 O.S. §2056).

¶15 In Oklahoma, summary judgment is proper only when the pleadings, affidavits, depositions, admissions, or other evidentiary materials establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.36 All inferences drawn from the evidentiary materials submitted to the trial court are viewed in the light most favorable to the party opposing the motion. Before a motion for summary judgment under Rule 13, 12 O.S. Supp. 1993, Ch. 2, App., Rules for the District Courts, may properly be granted, the movant must show that there is no disputed issue of material fact.

¶16 Even when basic facts are undisputed, motions for summary judgment should be denied if, under the evidence, reasonable persons might reach different conclusions. Only when a party shows that there is no material fact in dispute and the law favors the movant's claim or defense should summary judgment be entered. To defeat a motion for summary judgment, the nonmovant merely must present "something" showing that, at trial, there will be proof of the allegations. Materials relating to summary judgment need not rise to the level of admissibility

¶17 The standard for summary process in the federal courts differs substantially. Federal litigants must provide more persuasive evidence to support a proffered position. Trial judges are free to inquire whether a jury could reasonably find the evidence "clearly convincing." Further, the movant need not bear the burden of producing evidence sufficient to establish a defense if the issue is one on which the party does not bear the burden of proof at trial. Proffered evidence in the federal courts must rise to the level of the substantive evidentiary standard for trial. Federal judges may consider only admissible evidence and they need not scour the record in the search of disputed fact questions. The federal approach to summary process has been characterized as the judiciary's intrusion into an area formerly viewed as almost exclusively within the jury's province. Further, it may adversely impact a civil litigant's constitutional right to jury trial.

Note: In 1999 the Oklahoma Legislature passed 12 O.S. § 2056 which substantially adopts the language of the federal summary judgment Rule 56.

[BrunoTheJDBkiller]

Parties cannot thwart the purpose of summary judgment rules by creating affidavits that contradict their own depositions. Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir.1985). “t is well established that a party cannot create a genuine issue of fact by submitting an affidavit containing conclusory allegations which contradict plain admissions in prior deposition or otherwise sworn testimony.” Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir.1988).

Rumex , quoque tardus vobis

Anybody who is deposed is given a copy of the transcript, they then get to make corrections, sign the transcipt, and submit it as part of the official record. If you fail to do this, your responses stand. Filing affidavits contradicting answers already made won't work.

[eas21]

Wow, thanks for the replies guys, they are greatly appreciated. However, I must admit, I'm very confused on how to use this or what it's telling me. I apologize for not understanding, but could you simplify how to use this and/or apply it in my situation.

One other question. According to the statements they provided, the debt was incurred at an address in Oklahoma county and they are suing me in a different company where I currently reside. I have read differing accounts. Some say you can counter sue in federal court for this while other say they can sue you where you reside.

Thanks again for all the responses.

[BrunoTheJDBkiller]

Go back and read your post 3. You are all over the place, nobody can help you until you get a basic grasp of how the rules of procedure work. None of these motions you mention have any validity at this point. Slow down, follow the rules of procedure, and don't do anything until somebody here approves it for you. You are going too fast in a direction you do not understand.

They sent me back a bunch of credit card statements

Whose name is on these statements? Anybody's? I bet it's yours, with your address. How about the account number? Is this yours too? If no to the above, whose name is on the credit card statements they sent you? Nobody's? Now you have a case. although, no JDB is that stupid, they get copies of the statements from the OC. Granted, they only get a few, but they probably identify you. Tell us they don't and we'll help you.

Edited August 18, 2012 by BrunoTheJDBkiller

[eas21]

Sorry, I'm learning all this as I go. I'm not trying to be all over the place, and I'm taking in as much in as I can and learning on the fly. It is definitely a bit overwhelming and I wish I had found this site long ago to get help at each turn. In post 3, I was simply restating what I thought Coltsfan was saying in post 2. I will slow down and start learning the procedures more before getting ahead of myself, thanks for that advice.

So, let me try to explain in a little more detail. In both the admissions stage and the discovery process, I never admitted any guilt. I took the advice of some blog posts I read online of a lawyer who deals regularly with Midland. He mentioned to neither confirm or deny the allegations, answer their questions to the best of your knowledge, and state that this answer is in no way an admission of my guilt. Where that was the right thing to do or not, that was all I had to go by at that time as the 30 day deadline was fast approaching. I'm on the road a lot for work and they left the initial papers with someone at my residence and I didn't get word of them until the later portion of the 30 days.

After my first request for them to prove the validity of the debt, they sent me a piece of paper with my name, the last four digits of an account number, and the last four digits of my social security number. They highly encouraged me to call them and "discuss the matter, as they would help me solve this matter." During the discovery process, I asked them to produce original contract and proof that they do now own the debt. 30 days later, they sent me a packet in the mail with a bill of sale. This was a bill of sale showing that Midland bought the debt from Chase. This bill of sale had no reference in any way to any account, name, etc. Again, they encouraged me to call so they could help me with this issue.

They also included the credit card statements that I mentioned above. These did have my name and a previous address on them and an account number on it which I have no past records to verify.

That's where I'm at today and I don't know what my next step is. As I mentioned, I am on information overload with all the stuff I've read and overwhelmed on trying to figure out which step to take next. I will heed your advice and begin to better understand the rules of procedure.

Thanks!

[BrunoTheJDBkiller]

He mentioned to neither confirm or deny the allegations

If this was in relation to requests for admissions, this supposed lawyer should be disbarred.

a lawyer who deals regularly with Midland

I bet he does, he probably works for them

This was a bill of sale showing that Midland bought the debt from Chase. This bill of sale had no reference in any way to any account, name, etc.

This is how you win.