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fought midland funding and won, now getting calls from Midland Credit Management


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MCM is the parent company of Midland Funding. See if it's the same account. If you won your case on the merits (not just a voluntary dismissal by them) I think they have violated the FDCPA by attempting to collect a debt they have no right to collect.

 

Believe me, I wish we could sue for FDCPA violations if we win a case on the merits but the JDB still tries to collect.   However, unless the judge specifically ruled that Midland didn't own the account, there's no violation.   If all he said was that Midland didn't prove their case, he didn't say they definitely didn't own the account.

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Got a mailing today, from MCM -- what do you know??? It's the SAME account number!!!  Apparently, the fact that I fought and won a dismissal, didn't give them a clue that they were NOT dealing with a moron...

 

Ok, now my next question... where do I go from here? Thinking I need to do a D and V, and a cease and desist letter first?

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Unless they have more evidence than they had before, they won't file again because of the judge's ruling

 

I would send a refusal to pay.  That's the same as a cease and desist, but not all CAs/JDBs know that fact.  I would NOT mention the judge's ruling.  Just dispute the referenced account and refuse to pay.   If they try to collect again, you have them.

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Just to throw something out there...I've always wondered if denying the debt in court itself is a refusal to pay...in writing.   The FDCPA is pretty vague on the subject:  

 

 

If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt

 

A certified letter to the collector definately flips the bill but I don't see where it is limitied to just that.  The simple fact is, denying the debt is telling the collector that you are not going to pay...isn't this also a refusal to pay?  I know it is a play on words but the vagueness of the FDCPA allows for that. 

 

The question is, "Does the consumer have to actually use the word 'refuse'"?  I don't think so but the words and the situation must come to the point where the judge would see the consumer's actions as a refusal to pay. 

 

I would check through your proceedings to see what you said.   

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If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt

 

 

Courts use what they call "a plain reading of the statute." They take the intent as stated. In this case, the bolded part is what they will go by. It doesn't say "hope the debt collector reviews your prior law suits and figures out you refuse to pay." Always use the language Congress used in the statute. If they used the word refuse, there was a reason for it and you can't go wrong using their language.

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Right.  A letter to the collector saying that you "refuse to pay" - those exact words - definately triggers a cc order.  However, you could also say "I won't pay" and just about any court in the land will take that as a "refusal to pay".  My point being that I don't believe a consumer needs to couch the exact words "I refuse to pay" to invoke a cc order. 

 

On the other hand,  I don't think that simply denying the debt in your answer to a claim would be seen as an actual "refusal to pay" because it is a generic answer.  However, after the op went through the proceedings to the point where the claim was dismissed it becomes more clear that the op is refusing to pay.  It would depend upon the affirmative defenses brought up.  The sol defense would not work as it only says that the collector has run out of time.  It would have to be some sort of "not my debt" defense.

 

Really, when a consumer denies the debt they are saying that they won't pay.  If they were willing to pay then they would.  Look at it this way, if the judge asked the consumer if they were refusing to pay, they most likely would say yes.  If they said "no" then it is no longer a matter of if they refuse to pay, it becomes a matter of what do you think you owe. 

 

I don't know of any case law but a lot of case law was created from test cases.  It would depend upon what the op said in the proceedings which could be construed as a refusal to pay.   

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In this case we have to wait and see if they are stupid enough to sue him again. It sounds like he got a verdict of some sort, not a dismissal by the plaintiff. That has more weight. I doubt they'll sue him again, however, it is legal to continue collection attempts as I recall. Let them waste their postage.

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No, they won't sue again but someone at MCM has got the idea that they can make phone calls.  They can because the op has not yet sent them an official "I refuse to pay" letter.  I would attempt to word the cc order to include all affiliates along with future owners of the debt - and their affiliates.  Someone is likely to eventually screw up.  I'm waiting for $2,000 in the mail for a JDB who did just that.

 

MCM is actually making phone calls to the op so they don't waste much money and will probably continue to call until the op sends a cc order.

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It was dismissed WITHOUT prejudice... and I believe that they limitations on appeal were/are 30 days, which would be on the 25th of Feb...

This is gonna be governed by the statutes for filing lawsuits and the time allowed. It varies state to state so for instance if it is one year to refile they could do that however if the SoL is up they cannot file suit.

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Rule 1113. Time for Petitioning for Allowance of Appeal.

 


(a)  General rule.—Except as otherwise prescribed by this rule, a petition for allowance of appeal shall be filed with the Prothonotary of the Supreme Court within 30 days after the entry of the order of the Superior Court or the Commonwealth Court sought to be reviewed.

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Well, Midland won't appeal and they won't refile.  What they have chosen to do is simply make phone calls.  If all you want to do is make them shut up then a refusal to pay letter will do that.  From what you've posted so far, I don't see any clear cut violations to sue them.  If you want' to sue them you'll have to provide some facts about the phone calls and other incidents. 

 

For example, were the phone calls to your cell phone?  Did they leave a message?  Was it a recorded message?  Did you answer and was their a pause before someone answered.  These are more TCPA violations but it is a place to start.  The FDCPA is so consumer friendly that just about any violation of other statutes can apply to the FDCPA.  In fact, in Iowa (my state), it is a violation of the state statute if the collector breaks any other law while trying to collect the debt.

 

However, it takes a lot of work to sue a debt collector.  Some like to work the claim themselves but I think it is better to work the case a little to find violations then pass it onto a NACA attorney.  Yea, they get thousands while you only get a measly thousand but all you do is sign on the dotted line and wait for your money.

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