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Court with Midland for their MSJ on Wednesday - Super Stressed and Nervous


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I'm a long time lurker but not sure if I've posted here before.  Midland filed a Motion for Summary Judgment on me and the hearing is on Wednesday.  I'm starting to get really nervous about how this is going to go.  With the help of this forum and other resources, I was able to put together a Response and Opposition, along with a couple of exhibits and a personal affidavit. I ended up putting together a 10 page memorandum of law with case law cited, which I never thought would be possible!  I've previously put together Answers and Discovery Requests myself before but have never went this far.  I hope I've done enough or haven't done TOO much.  I did attach info from the Attorney General's case here against Midland and copies of the affidavits used in that case which are almost identical to mine,except with even less information on them.   I received a reply from them to my opposition this weekend which contained an additional affidavit from the lawyer, a piece of paper with the headings "Field Data" and "Field Name" with my name, amount, etc.  Also another statement from "Andrew Carlson" supposed portfolio manager at Jefferson Capital Systems (I brought up in my reply memorandum how the "Assignment of Accounts" not only didn't refer to my account whatsoever but also didn't refer to any assignment transfer between the Original Creditor and Midland)
 

Mr. Carlson did not mention my alleged account by name or my name and did not validate the piece of paper they attached with the field data info.  I wonder why they did not attach this information to their original MSJ and don't know if this is something I should bring up orally or not.  In their reply, the lawyer actually sounds angry that I dared to fight back.  I've gotten them to dismiss another case before once I served discovery on them.  This almost feels like they are trying to "pay me back". The clerk that filed my paperwork at the courthouse said that usually, these things go by way of default; i.e. the Defendant doesn't bother to respond.

 

Their original evidence produced by them contained a transaction history printout (not verified or validated), a couple of billing statements and the generic terms and conditions agreement which they refer to as a contract. In addition, they also make the "account stated" claim.  I also noticed on this agreement that it stated that the valid date on this agreement (which they refer to as the contract) was a full 5 months after I supposedly opened this account.  So I'm not sure how they can prove even the terms and conditions belongs to me.  It's not for a huge amount but I felt I had to fight it.  Unfortunately, after I filed my Answer and answered their discovery, I had several family issues which precluded me from serving my own discovery. I feel like an idiot, but it is what it is.  I had and still have much more important things on my mind.  They served this on me before I could serve discovery.  I did mention that in my response and requested a continuance.

 

I tend to be generally distrustful of the court system and leaving my fate in the hands of the judge scares me to death.  I am also terrified of public speaking.  I just don't want a judgment where they can garnish my wages. I'm living on the edge as is. My husband is encouraging me to keep fighting, so that helps.

 

Either way it goes, I wanted to thank all of you that take your time to help others out in this forum.  Without you, I would have never even been able to respond at all.

 

Edited to add, turns out I did post here before!  Probably for another dealing with these bottom feeders (the attorney, not Midland although I would include them in that category as well).  I've learned a little since then.  Not that I've wanted to, but I've been forced to.

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Not from Minnesota,

Remember for you to win the SJ battle you must point out one or more "material facts that are in dispute". Issues that require a trier of fact to rule upon. Third pary cases generally, will give you a number of issues to do this with. In your opposition, if you have pointed these things out you should be fine.

I would say you must be on the right track, becuase the plaintiff's side included additional information in their response. This would be a good sign that you struck a nerve. I am not sure of your Rules of Civil Procedure, so don't know if in "Reply to your Opposition" the plaintiff is allowed to supply additional information. If may not be allowed, you will need to check.

We are all nervous going to court, that is why there are lawyers. But usually these cases the lawyer costs more than the value of the case, so we have to go it alone. Good news is you know your case inside and out, better than the rent a lawyer that will be there for the otherside. So when they start lying, politely correct them, just as you would do for any of your children in church.

Remember they are trying to take your money, and right now you can't afford for them to have it.

Best of Luck

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I didn't hear anything yet about a continuance, so I'm not sure if that's something that would be brought up when I go to court on Wednesday? 

 

I went through each of their arguments and attacked each one, even if I didn't think it was necessarily a deal breaker.  I did my best to find relevant case law.  I ended up having more case law in my response than they did in their motion paperwork.  I only used one case from outside the state but I thought it was important.

 

Good to know about possibly striking a nerve.  I got all upset when I got their response thinking that they were nailing me to the wall.   Then I calmed down and actually read what they wrote, much of which was basically reiterating what they had originally wrote with a couple of case laws (from other states, referring to original creditors). As I said before, my husband has been a huge help with his "No, you are NOT giving up and settling - you need to fight these scumbags" speeches.  I think it really annoyed them that I tore apart their affidavit. 

 

Thank you Skippy - I will definitely check on that.  I thought it suspect that they didn't include it in their original motion paperwork.  I plan on responding to it orally when I appear if I am allowed.  I am making up a document with notes to refer to.

 

I may also be judgment garnishment proof but I'm not sure yet.  Waiting to hear back from an entity on that one.

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I didn't hear anything yet about a continuance, so I'm not sure if that's something that would be brought up when I go to court on Wednesday? 

 

I went through each of their arguments and attacked each one, even if I didn't think it was necessarily a deal breaker.  I did my best to find relevant case law.  I ended up having more case law in my response than they did in their motion paperwork.  I only used one case from outside the state but I thought it was important.

 

Good to know about possibly striking a nerve.  I got all upset when I got their response thinking that they were nailing me to the wall.   Then I calmed down and actually read what they wrote, much of which was basically reiterating what they had originally wrote with a couple of case laws (from other states, referring to original creditors). As I said before, my husband has been a huge help with his "No, you are NOT giving up and settling - you need to fight these scumbags" speeches.  I think it really annoyed them that I tore apart their affidavit. 

 

Thank you Skippy - I will definitely check on that.  I thought it suspect that they didn't include it in their original motion paperwork.  I plan on responding to it orally when I appear if I am allowed.  I am making up a document with notes to refer to.

 

I may also be judgment garnishment proof but I'm not sure yet.  Waiting to hear back from an entity on that one.

Nothing wrong with that, if an objection over an issue is not made you loose that defense. Always object to anythingeven if is remote.

 

Nothing all wrong with case law, actually you should use it.

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One question I do have is do I attack their reply memorandum orally or do I object to it entirely since I received it only a few days before with documents that had not been previously submitted with the motion paperwork?  I've been unable to find out any solid information on whether they are allowed to submit a supplemental affidavit and new exhibits this close to the hearing date.  Seems to be a bit of gray area.  The affidavit is from the attorney, not from Midland so I don't believe she can authenticate the documents she attached?

 

Keeping the faith that I won't go all marble mouthed tomorrow.

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All the judge can rule on is the pleadings, meaning the paperwork that has been filed with the court. If it has not been filed with the court there are out of luck.

 

An affidavit from the attorney is as useless as the attorney himself.

 

Good luck tomorrow and let us know how it goes. Stick to the facts and you will be fine.

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It looks like they did file the reply memorandum.  I already have a plan to go after the affidavit in oral arguments (if allowed) as the attorney cannot lay foundation for the additional exhibits submitted.

 

Thanks!  I will definitely let you all know as soon as possible.

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Oral arguments are good but I will stress again, all the judge can rule on is the pleadings, meaning the paperwork that has been filed with the court.

 

If it's not on a piece of paper in front of the judge he can't rule on it in an MSJ. PLEASE file an affidavit or opposition stating any argument you wish to make.

 

Too many people lose MSJ's trying to argue their case orally instead of through the pleadings, motions and affidavits.

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Not sure that I can file another affidavit to respond to their reply since court is tomorrow morning? I filed one in opposition to their motion along with my reply memorandum.  They didn't really bring up anything new in their reply memorandum other than the new exhibits, attorney affidavit and some case law from other states.

 

I did find out that it does state in the local MN district court rules for civil procedures that all affidavits and exhibits are to be filed with the initial motion for the moving party.  They are allowed a reply memorandum but it says nothing about supplemental affidavits or exhibits.  There is an advisory committee note to the rule that indicates that it is improper to withhold information from initial moving papers.  I do feel like they withheld these exhibits purposely to try to sandbag me but I don't know if I can prove it.  I don't think they submitted anything that is insurmountable so I'm not sure if I should even bring it up if allowed.

 

I have to admit, I will be really glad when this is over, either way. This has literally ruined my holiday as I'm now unable to go home for Christmas and see my parents because of the cost of dealing with this.  The other time I dealt with this particular law firm, my mother in law was in hospice and passed only a few days after I answered discovery. I remember typing it up in her room. Needless to say, I have no love lost for these dirtbags.

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Ha ha, sorry about that!  My hearing was supposed to be this morning and I ended up taking the day to get some Xmas stuff done that I had to put off due to this nonsense I had to deal with.  They actually canceled the hearing.  I did end up talking to the lawyer they sent (not the one who did the paperwork, of course).  She gave me some bs about them not being sure if this was my account or a fraud case (yeah, right) and they would need to look into it further.  No continuation or anything.  Just an outright cancellation.  Kind of strange. My husband thinks they will probably just dismiss. She did mention that she was going to talk to them about dismissal but I'm not buying it.  I'm taking this opportunity to complete my discovery and serve it upon them ASAP. I'm not going to squander this opportunity and I don't trust them.

 

I mentioned Midland being notorious for false affidavits and shady practices and she mentioned that I shouldn't believe everything I see on the Internet. LOL. Again, YEAH RIGHT.

 

There were at least 2 Midland cases I saw and one LNLV.  The LNLV was also canceled and he also had a stack of paperwork.  I don't think this firm likes to fight anyone who is prepared.  Midland's lawyer ended up leaving our courtroom and going to the other one that I assume had the other Midland case - I'm guessing that one was for a lot more money.  My case is literally peanuts - it makes me wonder why they would even bother.

 

Again, sorry for the wait, but it's good news, I think? At least I will have the chance to get my discovery completed.  Also, I sat in the courtroom for a while and watched the judge with other cases.  Most polite judge I've ever seen - I was shocked.  If I do have to go in front of him again, I won't be so worried.

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