TML

Midland Suing Me in Arizona - My Answer

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Well, I had the hearing today.  Esquivel did not show; JDB had one of their Jr. lawyers show up.  I went in with a 6 page typed statement and basically laid it all out using case law and Arizona Rules of Civil Procedures and Rules of Evidence.  If we were going to go to trial, I wanted them to know exactly what they would be up against.  I based everything on Lack of Standing to Sue while attacking on all points made in their MSJ.  After I was done, the judge asked Jr. if he had any comments.  He said that he was glad I brought up so many points; then said that at this time, they were waiting for the assignment from Wells Fargo that they have requested for their case. What? 

 

Judge said she thought there was enough evidence for trial and denied the MSJ - YEAH!  (I wondered if she was really listening to me at times, but I don't care; I made my case).

 

I told the judge I was ready to go to trial; Jr. said he needs at least 2 months because it could take some time to get the assignment from Wells Fargo being it's such a large institution!  Right!  They complaint was filed back in September of 2012 and served in December of 2012...and they still don't have all of their evidence??? 

 

Trial is set for July 28th. 

 

As I was leaving, a man stopped me to ask if I was an attorney.  I said "no".  He said "You were BRILLIANT!"  Wow - that was awesome!

 

So, of course I'm hoping that the JDB will realize that they can't win on standing and the trial won't even happen. 

 

Thank you all so much for getting me to this point.  And a special thanks to BV80 and Harry Seward! Also Coltfan72's post on Standing - YOU GUYS ARE THE BRILLIANT ONES!!

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I'm the OP of this thread.  My case was dismissed almost a year ago because Kaplan Law didn't show up to mediation twice.  Last week I received a letter from Kaplan saying, "As you know a judgement was entered against you on June xx, 2013...bla bla bla...contact us to make payment arrangements...."  Do these people think I have amnesia?!  I'm trying to decide if I should send them a snarky letter back including a copy of the dismissal and noting, "Really...that's now how I remember it playing out."  Or, if I should just leave it alone.  Anyone else have this happen to them?  What a joke.  

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@TML

I just read through the Lashinski affidavit they attached to their MSJ.  This paragraph of the case @BV80 posted directly applies to that affidavit:

 

 

So basically the Lashinski affidavit would be a problem for you if you were being sued by Midland Credit Management, but the Plaintiff is Midland Finding, and as with the above case, Lashinski does not explain how MCM and Midland Funding are related, so nothing in the affidavit can be attributed to Midland Funding's lawsuit against you.

 

The thing is it seems like all they have to do is go back and correct the deficiencies of the affidavit or have someone from Midland Funding prepare a new affidavit, but tackle one thing at a time.

 

I wanted to let you guys know that I addressed this issue in my hearing today:

 

In Plaintiff’s Reply, they claim Business records originally created by another business entity may be admissible as business records for a party that neither prepared nor created them if the party "regularly relies on the information that third parties submit as part of their ordinary course of business." State v. Parker, 231 Ariz. 391, 401-02, ¶¶ 31, 33, 296 P.3d 54, 64-65 (2013). Plaintiff also cites case law that does not apply to Arizona: Air Land Forwarders, Inc. v. U.S., 172 F.3d 1338, 1344 (Fed. Cir. 1999). See Saks Intern, Inc. v. M/V Export Champion, 817 F.2d 1011, 1013 (2d Cir. 1987) (following the adoptive business records doctrine); U.S. v. Ullrich, 580 F.2d 765, 771-72 (5th Cir. 1978) (same). 

 

In preparing for this hearing, I discovered that these three cases were actually cited from Arizona Court of Appeals, MIDLAND FUNDING, LLC v. Howell, No. 1 CA-CV13-0015 (Ariz. Ct. App. Nov. 12, 2013) and this case, to date, is unpublished and cannot be cited.  It does not have legal precedent and these cases are not mentioned in State v Parker as stated in Plaintiff’s Reply.

 

Plaintiff goes on to cite more from Midland v HowellIn some jurisdictions this is referred to as the "adoptive business records doctrine," which provides for the admission of documents as business records "where an organization incorporated the records of another entity into its own, relied upon those records in its day-to-day operations, and where there are other strong indicia of reliability.  Again, this case, to date, is unpublished and cannot be cited.  It does not have legal precedent and is not mentioned in State v Parker as stated in Plaintiff’s Reply.

 

I looked and looked through State v Parker and never found the exact reference that JDB was citing in their Reply to my MOSJ.  It looks like they did a cut and paste right from the Midland Funding v Howell appeal case.

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Well, I had the hearing today.  Esquivel did not show; JDB had one of their Jr. lawyers show up.  I went in with a 6 page typed statement and basically laid it all out using case law and Arizona Rules of Civil Procedures and Rules of Evidence.  If we were going to go to trial, I wanted them to know exactly what they would be up against.  I based everything on Lack of Standing to Sue while attacking on all points made in their MSJ.  After I was done, the judge asked Jr. if he had any comments.  He said that he was glad I brought up so many points; then said that at this time, they were waiting for the assignment from Wells Fargo that they have requested for their case. What?

I know you were on the spot and weren't prepared for them to say they needed to get the info at this late stage, so don't take this as a criticism. I'm simply posting it for anyone else that finds themselves in this same situation. It would have been a good idea to move the court to dismiss the Plaintiff's case at this point. They have dragged you to court and wasted everyone's time and precious resources on a case they are not able to prove 18 months into the lawsuit.

Again, you did great as evidenced by the fact the judge denied the MSJ and the guy that asked if you were an attorney. How awesome!

Judge said she thought there was enough evidence for trial and denied the MSJ - YEAH!  (I wondered if she was really listening to me at times, but I don't care; I made my case).

 

I told the judge I was ready to go to trial; Jr. said he needs at least 2 months because it could take some time to get the assignment from Wells Fargo being it's such a large institution!  Right!  They complaint was filed back in September of 2012 and served in December of 2012...and they still don't have all of their evidence??? 

 

Trial is set for July 28th. 

 

As I was leaving, a man stopped me to ask if I was an attorney.  I said "no".  He said "You were BRILLIANT!"  Wow - that was awesome!

 

So, of course I'm hoping that the JDB will realize that they can't win on standing and the trial won't even happen. 

 

Thank you all so much for getting me to this point.  And a special thanks to BV80 and Harry Seward! Also Coltfan72's post on Standing - YOU GUYS ARE THE BRILLIANT ONES!!

What they are doing now is waiting for you to make a mistake, so watch all of your deadlines very carefully. They will show up to pre-trial probably still with nothing and probably ask for another continuance. The ball will be in your court to compel the court to either move forward with trial or dismiss the case. If you don't object to their requests for continuances the court could let this thing drag on indefinitely so be aggressive in demanding a speedy disposition.

Finally, total congrats. Being able to stand in court and make clear and compelling arguments is an art form. I haven't been put to the challenge yet and I'm nervous as hell about it. So don't shortchange yourself. If a stranger tells you that you were brilliant, own it and be proud because you got a MSJ denied and props from a complete stranger. And make no mistake. "Jr" walked out of there with his tail between his legs. He very likely never saw any of the things you filed so he probably wasn't even expecting you to show up, let alone SHOW UP!!!

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I'm the OP of this thread.  My case was dismissed almost a year ago because Kaplan Law didn't show up to mediation twice.  Last week I received a letter from Kaplan saying, "As you know a judgement was entered against you on June xx, 2013...bla bla bla...contact us to make payment arrangements...."  Do these people think I have amnesia?!  I'm trying to decide if I should send them a snarky letter back including a copy of the dismissal and noting, "Really...that's now how I remember it playing out."  Or, if I should just leave it alone.  Anyone else have this happen to them?  What a joke.  

 

You're the OP of this thread? ??

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I wanted to let you guys know that I addressed this issue in my hearing today:

In Plaintiff’s Reply, they claim Business records originally created by another business entity may be admissible as business records for a party that neither prepared nor created them if the party "regularly relies on the information that third parties submit as part of their ordinary course of business." State v. Parker, 231 Ariz. 391, 401-02, ¶¶ 31, 33, 296 P.3d 54, 64-65 (2013). Plaintiff also cites case law that does not apply to Arizona: Air Land Forwarders, Inc. v. U.S., 172 F.3d 1338, 1344 (Fed. Cir. 1999). See Saks Intern, Inc. v. M/V Export Champion, 817 F.2d 1011, 1013 (2d Cir. 1987) (following the adoptive business records doctrine); U.S. v. Ullrich, 580 F.2d 765, 771-72 (5th Cir. 1978) (same). 

 

In preparing for this hearing, I discovered that these three cases were actually cited from Arizona Court of Appeals, MIDLAND FUNDING, LLC v. Howell, No. 1 CA-CV13-0015 (Ariz. Ct. App. Nov. 12, 2013) and this case, to date, is unpublished and cannot be cited.  It does not have legal precedent and these cases are not mentioned in State v Parker as stated in Plaintiff’s Reply.

 

Plaintiff goes on to cite more from Midland v HowellIn some jurisdictions this is referred to as the "adoptive business records doctrine," which provides for the admission of documents as business records "where an organization incorporated the records of another entity into its own, relied upon those records in its day-to-day operations, and where there are other strong indicia of reliability.  Again, this case, to date, is unpublished and cannot be cited.  It does not have legal precedent and is not mentioned in State v Parker as stated in Plaintiff’s Reply.

I looked and looked through State v Parker and never found the exact reference that JDB was citing in their Reply to my MOSJ.  It looks like they did a cut and paste right from the Midland Funding v Howell appeal case.

Right f-ing on!!!

I'm beaming right now I'm so proud of you! You totally kicked them where it counts. ;-)

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I know you were on the spot and weren't prepared for them to say they needed to get the info at this late stage, so don't take this as a criticism. I'm simply posting it for anyone else that finds themselves in this same situation. It would have been a good idea to move the court to dismiss the Plaintiff's case at this point. They have dragged you to court and wasted everyone's time and precious resources on a case they are not able to prove 18 months into the lawsuit.

Again, you did great as evidenced by the fact the judge denied the MSJ and the guy that asked if you were an attorney. How awesome!

What they are doing now is waiting for you to make a mistake, so watch all of your deadlines very carefully. They will show up to pre-trial probably still with nothing and probably ask for another continuance. The ball will be in your court to compel the court to either move forward with trial or dismiss the case. If you don't object to their requests for continuances the court could let this thing drag on indefinitely so be aggressive in demanding a speedy disposition.

Finally, total congrats. Being able to stand in court and make clear and compelling arguments is an art form. I haven't been put to the challenge yet and I'm nervous as hell about it. So don't shortchange yourself. If a stranger tells you that you were brilliant, own it and be proud because you got a MSJ denied and props from a complete stranger. And make no mistake. "Jr" walked out of there with his tail between his legs. He very likely never saw any of the things you filed so he probably wasn't even expecting you to show up, let alone SHOW UP!!!

 

Thanks Harry!  I wasn't sure what my options were when the judge said she was going to set a date for trial.  I will definitely be more assertive and take your advice to try to move the court forward. 

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Thanks Harry!  I wasn't sure what my options were when the judge said she was going to set a date for trial.  I will definitely be more assertive and take your advice to try to move the court forward.

I know. I don't think I would have thought of it either. When things happen in court it can seem like "ok, that's that, I guess" but you can speak up at any time. The worst that can happen is the judge says no and you're where you would have been anyway.

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@BV80

It gets even better! The law firms in both cases are the same and so is the actual lawyer!

Could the affidavit be an FDCPA violation on the grounds that plaintiff and it's attorneys have presented evidence they know cannot support their claims (false representationof the legal status)?

 

One more thing I addressed today.  I really wanted them to know that I'm paying attention.  Hope they just drop the entire thing  ::daisy::   

 

Again, in preparing for this hearing, I discovered that Plaintiff’s Complaint attached a different affidavit dated August 20, 2012; affiant name is Tanya Johnson.  Her affidavit is almost identical to Ashley Lashinski's affidavit dated November 21, 2013 with the exception of this added statement:  "I am advised that such balance will continue to accrue interest at the rate set forth in the cardholder agreement/original contract and/or as required by law".  In Midland v Howell, this statement was concluded to be “inadmissible as hearsay according to Rule801©, Ariz.R.Evid.  Lashinski's affidavit does not include this statement;  it does however have the following three statements added.

  1. Based upon my review of MCM's business records: 1) defendant(s) opened the Wells Fargo Account No._______ 2) the last payment to the account on 2008-12-30; and 3) the account was charged off on 2009-07-31. 
  2. Attached hereto are the following records regarding the account and/or payment(s) received: bill of sale and assignment and/or billing statements. 
  3. The documents hereto, according to our records, are true and correct copies of the originals being a reproduction from the records on file on behalf of the plaintiff.

It appears that, after the Midland Funding LLC v Howell decision was reversed and remanded in favor of Howell in Arizona Court of Appeals, Plaintiff then decided to file their Motion for Summary Judgment against me on December 16, 2013; almost 6 months after the case was in pending dismissal status.  The Motion for Summary Judgment included the second affidavit that was slightly different from the first.  Coincidence?  

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You're the OP of this thread? ??

Omigosh sorry - no...I was the OP of another one of the same topic sorry.  Was subscribed to this one and figured it was mine.  Its been a year.  My apologies....I'll post on my own.  Disregard here.  

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Omigosh sorry - no...I was the OP of another one of the same topic sorry.  Was subscribed to this one and figured it was mine.  Its been a year.  My apologies....I'll post on my own.  Disregard here.  

 

No worries!! ::punk::

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Well, today I rec'd a letter from Jerold Kaplan Law Offices:

 

"Please find enclosed the original Stipulation and Order of Dismissal in the above referenced matter.  Please sign only on the line above your name, and return to our office within ten (10) days.  Please return all the original documents attached to this letter".

 

The Stipulation and Order of Dismissal is WITHOUT prejudice.

 

Unbelievable!! I can't stop shaking my head in disbelief.  I can't thank everyone on this website enough!  Truly Amazing!!

 

To everyone reading this post, YOU CAN BEAT THESE GUYS!!  DON'T -  GIVE - UP!! :yahoo: :yahoo:

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The Stipulation and Order of Dismissal is WITHOUT prejudice.

 

Unbelievable!! I can't stop shaking my head in disbelief.  I can't thank everyone on this website enough!  Truly Amazing!!

 

To everyone reading this post, YOU CAN BEAT THESE GUYS!!  DON'T -  GIVE - UP!! :yahoo: :yahoo:

 

Congratulations!  ::USA::

 

You might want to run this by an experienced FDCPA attorney before you sign. You might get a little more than just a dismal out of it. Great Job! 

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I just got Plaintiff's Response to my MOSJ.  Kaplan is using the same case law as yours. If, you wouln't mind taking a look at my thread.  I'm heading to the library to upload it.  Thanks and congrats again.

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Well, today I rec'd a letter from Jerold Kaplan Law Offices:

 

"Please find enclosed the original Stipulation and Order of Dismissal in the above referenced matter.  Please sign only on the line above your name, and return to our office within ten (10) days.  Please return all the original documents attached to this letter".

 

The Stipulation and Order of Dismissal is WITHOUT prejudice.

 

Unbelievable!! I can't stop shaking my head in disbelief.  I can't thank everyone on this website enough!  Truly Amazing!!

 

To everyone reading this post, YOU CAN BEAT THESE GUYS!!  DON'T -  GIVE - UP!! :yahoo: :yahoo:

I just now read this. Nice job!

This is the difference a judge that is thorough and thoughtful (or possibly just not asleep at the wheel) makes in these cases. Be sure to vote for her the next time she is up for reelection! She's definitely a keeper!

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Thanks Harry and thanks again for all of your help.

 

I haven't signed the stip yet..............started thinking that maybe I should counter:  "Plaintiff and defendant stipulate that the matter be dismissed WITH prejudice and no cost to either party".  I figure I have nothing to lose; obviously they do not want to go to trial, right?

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Hey there - I read through most of your thread.  Yes, there are some similarities.  My focus was to read and be familiar with their case law as well as mine.  I made it very clear that I would be asking for live witness testimony from the OC to Midland Funding (chain of custody) and Standing to Sue.  If they can't prove they own the debt, then they can't sue me.  It can all get so complicated; I tried to keep it simple and focused on those few things.

 

Good Luck!!

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Did you request the hearing on the MSJ? Looking back I wish I would have done that in my case. I don't expect the judge would have granted it considering the way he handled everything else in my case but it would have been my only shot to have gotten him to actually comprehend my arguments over Cavalry's.

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I didn't request that the case be dismissed at the hearing; didn't think that fast.  I wish I had too.  Anyway, I'm gonna send them a letter and see what they say.

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No, sorry. I wasn't clear. Did you ask for a hearing on the MSJ itself? Like when they filled the MSJ did you ask for a hearing or did the judge just send you a notice for when to appear?

IMO it should be SOP to set a hearing if the judge plans to grant the MSJ but it isn't and lazy judges don't do it unless someone asks, and even then they don't always do it.

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No, I did not request a hearing.  Actually, plaintiff sent me a copy of the order that they submitted with their MSJ; it was stamped with the seal from justice court and someone wrote "Set for Hearing 4/25/14 @ 1:15".  So I guess the Judge set the hearing, right?  Then notified plaintiff and they mailed to me.

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Yeah, so it seems the court took it upon itself to set the hearing. Nice!

So, yeah, it seems requesting a hearing if the court doesn't set one is the way to go.

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Well, after doing some research on "with prejudice vs. without prejudice", I decided to send JDB a letter basically saying "I was unable to sign their Stip/Order without prejudice, however, I would sign a Stip/Order with prejudice and no cost to either party".

 

Today I rec'd another letter with a new Stip/Order to dismiss with prejudice; they did not include "no cost to either party".

 

Does anyone have any feedback on this?  It almost seems too easy and that makes me suspicious.  SOL should be up at the end of the year so I'm thinking this looks good.  I'm hesitant to sign though.  I don't trust them with my orginial signature. I would feel better if the JDB would have at least signed the Stip first.  Thoughts???

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