Is Midland violation of Arizona court rules an FDCPA violation?

[Christine]

Midland just supplemented its initial disclosures with the last HSBC statement. ARCP Rule 37©. Failure to Disclose; False or Misleading Disclosure; Untimely Disclosure:

(1) A party who fails to timely disclose information required by Rule 26.1 shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion, the information or witness not disclosed, except by leave of court for good cause shown. A party or attorney who makes a disclosure pursuant to Rule 26.1 that the party or attorney knew or should have known was inaccurate or incomplete and thereby causes an opposing party to engage in investigation or discovery, shall be ordered by the court to reimburse the opposing party for the cost, including attorney's fees of such investigation or discovery. In addition to or in lieu of these sanctions, the court on motion of a party or on the court's own motion, and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorney's fees, caused by the failure, these sanctions may include any of the actions authorized under subparagraphs (A), ( and © of subdivision ((2) of this Rule and may include informing the jury of the failure to make the disclosure.

(2) A party seeking to use information which that party first disclosed later than sixty (60) days before trial must obtain leave of court by motion, supported by affidavit, to extend the time for disclosure. Such information shall not be used unless the motion establishes and the court finds:

(i) that the information would be allowed under the standards of subsection ©(1) notwithstanding the short time remaining before trial; and

(ii) that the information was disclosed as soon as practicable after its discovery.

The attorney (Monica Derrick with Bursey & Associates) attached the statement as its only exhibit to the Midland motion to dismiss my counterclaim, mailed a day before the supplemental disclosure. AND, the trial is scheduled later this month.

I'm currently working on my motion for leave to amend my answer/counter claims, to join Midland Credit Management (servicer) because they just called me a few days ago for most likely another account, although I never had an "Ameritech" credit card as the guy claimed.

Midland Credit is also listed as the company reporting the Midland Funding account on one of my reports. It's NICE that they report to TU as "open" account as that will help proving that it is an open account and subject to the former 3 year SOL in AZ. And they're incorrectly reporting the Date of Last Activity to Equifax, reaging the account.

So I'll request a continuance of the trial and the 60 day rule is not really an issue, but I'm wondering whether that supplemental disclosure of the statement and using it in the motion to dismiss without having requested leave of court can be considered an FDCPA violation, unfair practices comes to mind since I don't have an attorney and can't afford to pay one.

Have there been any relevant court rulings?

If so, I could also ask to join the attorneys. FYI, Midland did NOT disclose the second account at all and I was very surprised when I got my credit reports last night to see TWO Midland HSBC accounts.

ANOTHER ISSUE: Midland requested telephonic appearance for the witness at trial as the UNNAMED witness lives outside our county and is only to lay foundation for exhibits. In their initial disclosures they listed FOUR people that could be testifying, but they never specified one. Can I ask that they tell me who the witness will be?

I think it's hard to question someone on the phone as I can't hand them the exhibits, make sure we're looking at the same page, etc.

Edited November 8, 2012 by Christine

[Beergoggles]

you must oppose the motion to appear by phone, as far as the statement goes I sure they said an investigation is ongoing blah blah blah. I am sure others might tweak this opposition a little.

Statement of Facts

Defendant has not subpoenaed the witness, but instead the Plaintiff offered to have their witness testify, since Plaintiff are the ones who offered, Plaintiff should have been prepared to bring their witness to testify in person.

Legal Support

Rule 612.2 Arizona Rules of Evidence States

If a witness uses a writing to refresh memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing, to

inspect it.

At this time the Defendant has received nothing from Plaintiff regarding this rule.

Conclusion

There is no way to prove the person phoning in who he/she says they are The Plaintiff could substitute anyone. When questioning the witness the Court the Plaintiff, or the Defendant cannot see their facial expressions, cannot read their body language. Witness could be coached by third parties.

The Defendant Respectfully asks the Court to Deny Plaintiffs Motion to Allow Witness to Appear by Telephone

[BV80]

If so, I could also ask to join the attorneys. FYI, Midland did NOT disclose the second account at all and I was very surprised when I got my credit reports last night to see TWO Midland HSBC accounts.

Why would Midland have to disclose the 2nd account?

[Christine]

Why would Midland have to disclose the 2nd account?

While almost all my discovery requests refer to "the alleged debt", my request for production includes:

"All documents which refer or relate to Defendant, or ..."

This request is NOT limited to "the alleged debt" and while they were 2 months late with their responses, they provided nothing at all and referred to their initial disclosures.

Regarding the telephonic appearance:

If a witness uses a writing to refresh memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing, to

inspect it.

They did supply some docs and the card statement with their initial disclosures.

With regards to the conclusion, is there any case law? If not, the judge will rule for them as I'm in a very hostile court where judges hate any consumer who dares to actually show up or even worse, files a lawsuit.

The judges routinely ignored the rules in the past and they actually once granted an attorney over $200/hr for driving 300 miles to the court. Fortunately I got the case remanded on appeal for briefing on the law (TCPA) and we then settled for $2,000, but it was an enormous amount of work and I'm sure it came to less than $2/hr for me. I know what I'm up against.

[BV80]

I don't know that they were required to provide information related to the other debt. Just because we ask for something in discovery doesn't mean the other side has to provide it. The same goes for them. If they ask for documents that have no bearing on the case, you can object to the request as being irrelevant.

The purpose of discovery is to find out information that's relevant to the case at hand. The other debt would have no bearing on this case.

[Christine]

That's an interesting perspective since I have a counterclaim for an FDCPA violation I thought that it would be relevant. It definitely will be relevant if I can amend my complaint. What's really important is that I can make MY late disclosures, the incorrect credit reporting.

And I just realized that there probably was no correspondence since their "servicer" Midland Credit Management or other collectors do all the collecting.

And I just spoke to the court and found out that the Midland motion for telephonic appearance was filed on 10/25/12 and granted on 10/29/12.

It seems to me that there should at least be a rule requiring identification of the witness.

Edited November 8, 2012 by Christine

[BrunoTheJDBkiller]

It seems to me that there should at least be a rule requiring identification of the witness.

There is. It's called a witness list. They have to inform you of the name etc in case you want to depose them. Your court rules should give you the time frame under trial procedure.

Paragraph one of your post gives you the remedy for the failure to disclose. I've never heard of a violation of court procedure constituting an FDCPA violation. As BV80 said, the second debt is irrelevant to your case.

[Christine]

Had to search my own website:

Arthur Miller v. Cohen & Slamowitz: attorney’s failure to conduct meaningful review violates FDCPA

MEMORANDUM, DECISION AND ORDER: This Court concludes that Defendant UCS failed to undertake a meaningful review of Plaintiff’s debt-collection matter and is therefore liable for misrepresentations in violation of FDCPA § 1692e.

I'm sure there are other cases, just have to find them.

And I think I'll start a Midland blog with all the filings. Almost 1000 cases show up in a docket search for "Midland" in the Kingman justice court. Probably all default judgments.

[Christine]

There's no rule requiring an attorney to read all the documents before filing suit. Not reviewing the docs is an FDCPA violation.

Violating the rules of civil procedures to gain an unfair advantage over a pro se defendant is NOT an FDCPA violation?

This isn't the debt collectors' board, is it?

[1stStep]

See my comments in bold - this is tough love - sorry:

There's no rule requiring an attorney to read all the documents before filing suit. Not reviewing the docs is an FDCPA violation. If there's no disclaimer that the file wasn't reviewed then yes.

Violating the rules of civil procedures to gain an unfair advantage over a pro se defendant is NOT an FDCPA violation? If you are representing yourself, you are held to the same standard as a practicing attorney - mainly, the court expects you to understand the rules. I've represented myself just fine - but if you cant / won't learn the court rules, don't complain that they are getting an unfair advantage - hire a lawyer. I had to learn the hard way my first go around.

This isn't the debt collectors' board, is it?

[BrunoTheJDBkiller]

Violating the rules of civil procedures to gain an unfair advantage over a pro se defendant is NOT an FDCPA violation?

No, it is not. It is a violation of the RPC, in which case you would have to file a bar complaint against the law firm / attorney. These are VERY hard to prove. It would have to be a blatant, intentional violation and you would have to prove intent. As for the FDCPA, I see nothing in your posts where they admitted to not reviewing the documents, perhaps I missed it. Unless you have them in discovery admitting to this, or the disclaimer is missing as 1stStep noted, you won't be able to make your case.

This isn't the debt collectors' board, is it?

Does it look like it? Just because we don't agree with your argument doesn't mean we're taking the other guy's side. If you disagree, take them to federal court and see how it works out for you. The Cohen case was an extreme example of sloppy work. You'd be held to the same standard.

[BV80]

There's no rule requiring an attorney to read all the documents before filing suit. Not reviewing the docs is an FDCPA violation.

Violating the rules of civil procedures to gain an unfair advantage over a pro se defendant is NOT an FDCPA violation?

This isn't the debt collectors' board, is it?

I suppose I'm not understanding what you feel they didn't review.

Also, what evidence do you have to support your opinion?

[antiquedave]

Is she is saying that they did not review the account prior to sending a dunning letter prior to the lawsuit?

Court documents, motions, etc are not considered communications for FDCPA , if they send you letters about the debt during the lawsuit those letters could be communications pursuant to FDCPA

If you are saying that they did not review your file prior to filing the lawsuit, that it is a robo suit for the lack of a better description I don't know where you can go with that,

I would sugges that you consider having a consumer attorney review your possible FDCPA violations and if there are any have them file the suit for you separate from your defense of the one you are in.

Still gives you leverage and you won't be distracted with the FDCPA issues and you can concetrate on other things