hopetowin

Sued By Midland and Not Sure what to Do Next

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A suit was brought against me in May of last year by Midland in Franklin County in Columbus, Ohio. Here is a list of what has transpired since then:

 

5/21- Filed by Midland

6/13 Filed for Definiative Statement

6/28 Plantiff filed for my statement request to be denied

7/13- DEFENDANT'S MOTION FOR MORE DEFINITE STATEMENT IS DENIED. PLAINTIFF HAS COMPLIED WITH THE LAW IN ITS PLEADINGS BUT MAY NOT BE ABLE TO PROVE ITS CASE WITHOUT FURTHER DOCUMENTATION. PER JUDGE BRANDT

 

7/18- I filed for a motion to dismiss pending arbitration

8/20- This is denied

 

9/17 Plaintiff filed to have a default judgment as I never filed an answer

9/24- Filed an answer denying this is my debt

9/24- Motion for Summary Judgement was denied

9/27- Plaintiff served me with Interrogatories and I denied all claims. There was also further documentation filed. An affidavit from a Susan Rassmussen that she knows of their business practices and that this is my debt. They also gave me two statements that had NO purchases, NO payments, and a copy of Midlands Purchase Agreement and their statement

 

10/02- We went to mediation and it was unsuccessful and we were set for pretrial

10/02- I served the Plantiff with Interrogatories, requesting statements with Payments, date of last payment, any purchase, a statement with a 0 balance and subsequent statements 

 

The plaintiff returned the interrogatories and said to 90% of them that the information I was requesting was too cumbersome for them to get and that what they provided was enough

 

12/13 I filed for a motion to compel

 

1/9 Midland opposed my motion

 

1/17 My motion to compel was denied

 

We had a pretrial that was pretty much a waste of time as the Judge wasn't there and we were to just talk ourselves to try and work something out.

 

2/12 Plaintiff filed for Leave to be able to file for Summary Judgement on the grounds that if this went to trial it is obvious they would win based on the information they have provided

 

2/19 The Judge granted their motion and their Summary Judgement was filed

 

2/25- I filed my opposition to this motion based on the main fact that at this point they have not provided everything they need to provide to validate this debt including the statement or date of the last payment which we would need to ascertain if the debt was mine but also if the statute of limitations had expired.

 

2/25- I also filed a Motion for Summary Judgement that the Plaintiff is unable to prove their case and so it should be dismissed

 

I am waiting on the judge's ruling but wondered if there was anything I am missing or should do. AND if I lose and he grants their motion are there any steps I can take to overturn this because it seems like he is just denying all of the motions and that he wants this to just be over with. I feel confident that I have the law on my side here but am feeling like the judge is a wild card. Sorry it is so long but I wanted to give the complete picture. Thanks for any feedback! I have gotten this far because of this board!

 

 

 

 

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He will rule on it tomorrow. I filed my motion in opposition to this based on a couple things but my main argument is that the statute of limitations cannot be determined by the information that was provided. I am just really surprised that I am in this situation. I feel like the law really is on my side but who knows what the judge will say. The statute of limitations is from the date of the last payment. Is that accurate?

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He will rule on it tomorrow. I filed my motion in opposition to this based on a couple things but my main argument is that the statute of limitations cannot be determined by the information that was provided. I am just really surprised that I am in this situation. I feel like the law really is on my side but who knows what the judge will say. The statute of limitations is from the date of the last payment. Is that accurate?

 

Yes, that is accurate. That sounds like an issue that should be decided at trial. You should be good.

 

Are you saying it will be heard in court tomorrow or he will rule on it behind closed doors? I wish all motions could be argued in court. They are in Delaware and I think it makes a big difference. Good luck.

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I disagree with the SOL thing, the account goes into default on the day a scheduled payment is not made. That is specified in the cardholder agreement. On the day the last payment was made, the account was current and would remain so until the next payment was due. I am unaware of any court that will rewrite a contract between parties to satisfy a state law that really does not even apply.

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I disagree with the SOL thing, the account goes into default on the day a scheduled payment is not made. That is specified in the cardholder agreement. On the day the last payment was made, the account was current and would remain so until the next payment was due. I am unaware of any court that will rewrite a contract between parties to satisfy a state law that really does not even apply.

 

We'll have to disagree then. I've been doing a lot of research on it and everywhere I have looked indicates the SOL starts running from the date of last activity which could be either a payment or a charge. I agree the date of default would be when you missed a payment or paid short, but the SOL starts ticking after your last payment or purchase.

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I disagree with the SOL thing, the account goes into default on the day a scheduled payment is not made. That is specified in the cardholder agreement. On the day the last payment was made, the account was current and would remain so until the next payment was due. I am unaware of any court that will rewrite a contract between parties to satisfy a state law that really does not even apply.

 

I agree that the account goes into default when a payment is missed.  However, default and the SOL are not necessarily one and the same.  As you know, default merely means that one has failed to fulfill an obligation whereas the SOL has to do with the length one has to file suit.

 

In a cc case, the SOL would begin on the date of default, but a payment would reset the length of time in which a creditor or JDB could file suit.  For it to be otherwise, a state law would have to be very specific.  For instance, a law might have to state that ONLY the date of default triggers the SOL  Or it would have to state that a payment does NOT extend the SOL.

 

My state law specifically states that a payment resets the SOL.

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I agree that the account goes into default when a payment is missed.  However, default and the SOL are not necessarily one and the same.  As you know, default merely means that one has failed to fulfill an obligation whereas the SOL has to do with the length one has to file suit.

 

In a cc case, the SOL would begin on the date of default, but a payment would reset the length of time in which a creditor or JDB could file suit.  For it to be otherwise, a state law would have to be very specific.  For instance, a law might have to state that ONLY the date of default triggers the SOL  Or it would have to state that a payment does NOT extend the SOL.

 

My state law specifically states that a payment resets the SOL.

 

I respectfully disagree. I cannot find one place where the date of default has anything to do with the SOL. It starts with the last payment or charge on the CC. For example, you go into default on your card by missing a payment. Your last payment was 45 days ago, it is technically in default. You get gas and the charge goes through. The clock starts ticking on the SOL from the date you got that gas which has absolutely nothing to do with the date of default. The last activity on the card (charge or payment) starts the SOL clock. I'm certainly open to debate on it but I haven't seen the default date mentioned in writing anywhere that speaks to the SOL. Anyone got a link to settle this?

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They dont have a statement from the last payment or from the date I went into default. If it was the default date what proof do they need. The judge is ruling tomorrow without a court date....

 

If they don't have proof of any charges or payments to prove the SOL then they must be using an affidavit to indicate the last activity. You have to deny this date in an affidavit of your own (which will counter theirs - "dueling affidavits") and then you must make sure you attack the SOL. If you are confident they can't come up with something that keeps it within the SOL, file a motion to dismiss. You can motion to dismiss if the debt is time barred. Very procedural. It will then be up to them to PROVE that it is still within the SOL.

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I agree with flyerfan, I have been researching this with state laws, and as far as law school we are taught from the date of last activity, not the default date.

 

You could default in lets say March, then make a payment, but not in full, in April and do nothing else, The date of last activity for the SOL would be April. But the OC would report the default as of March.

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They dont have a statement from the last payment or from the date I went into default. If it was the default date what proof do they need. The judge is ruling tomorrow without a court date....

 

Good luck with everything today. Keep us posted.

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The motion was supposed to be ruled on yesterday and it wasn't. I am hoping because I filed my own motion that has left him finally looking at the facts of the case.

 

Did you call or are you just checking on-line. Sometimes it takes a while for the website to catch up to what has actually transpired.

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I respectfully disagree. I cannot find one place where the date of default has anything to do with the SOL. It starts with the last payment or charge on the CC. For example, you go into default on your card by missing a payment. Your last payment was 45 days ago, it is technically in default. You get gas and the charge goes through. The clock starts ticking on the SOL from the date you got that gas which has absolutely nothing to do with the date of default. The last activity on the card (charge or payment) starts the SOL clock. I'm certainly open to debate on it but I haven't seen the default date mentioned in writing anywhere that speaks to the SOL. Anyone got a link to settle this?

 

We are arguing a non existent scenario here. The SOL for any tort starts at the date of the injury. The date of injury depends on the conditions set forth in the contract. All cardholder agreements specify default (the injury) as occurring when a scheduled payment is missed. If they allow you to continue to use the account, (unlikely at 45 days, at some point they will shut you off) that does not bring the account current. Charges are not payments. The SOL does not start on the day of the last payment, because the account is still current at that time. Show me one case where any creditor sued a consumer the day after they made their scheduled payment. Statutes of the type you mention are usually used in lieu of an agreement that specifies what the parties agreed to. If there is no contract to guide the court's decision, they will apply the statute. There is no reason for any court to rewrite a contract or to rule against the agreed to terms unless they are illegal. I've read thousands of cases, and never saw one where this was an issue. The only possible way it could even apply is if the SOL is an issue and the difference is 30 days. Even then, I think the argument would fail. All you'd need is someone from the OC to testify in some fashion that the account was current on such and such a date and was not in default. No default, no injury, no grounds for a law suit. Might even be an FDCPA violation, since they are attempting to take legal action which cannot be taken.

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We are arguing a non existent scenario here. The SOL for any tort starts at the date of the injury. The date of injury depends on the conditions set forth in the contract. All cardholder agreements specify default (the injury) as occurring when a scheduled payment is missed. If they allow you to continue to use the account, (unlikely at 45 days, at some point they will shut you off) that does not bring the account current. Charges are not payments. The SOL does not start on the day of the last payment, because the account is still current at that time. Show me one case where any creditor sued a consumer the day after they made their scheduled payment. Statutes of the type you mention are usually used in lieu of an agreement that specifies what the parties agreed to. If there is no contract to guide the court's decision, they will apply the statute. There is no reason for any court to rewrite a contract or to rule against the agreed to terms unless they are illegal. I've read thousands of cases, and never saw one where this was an issue. The only possible way it could even apply is if the SOL is an issue and the difference is 30 days. Even then, I think the argument would fail. All you'd need is someone from the OC to testify in some fashion that the account was current on such and such a date and was not in default. No default, no injury, no grounds for a law suit. Might even be an FDCPA violation, since they are attempting to take legal action which cannot be taken.

 

I agree the date of default would be written into the contract or terms but we're not talking about default exactly. The terms of the credit card cannot change the law and they have nothing to do with how long they have to sue a customer for defaulting on a CC. The SOL is the law, not part of the terms and conditions of the card. Show me anywhere that states that the SOL is based on the date of default as opposed to the date of last activity.

 

Of course, no bank will sue on a current account but that mean in any way that the default date has anything to do with the length of time they CAN sue. 

 

This is from the Oak View Law Group:

 

Many people confuse between credit reporting time limit and SOL. But the only thread that connects credit reporting time and SOL is debt. Credit reporting time essentially refers to the time period during which a delinquent debt stays on your credit report. SOL, on the other hand, is the time limit within which a debt collector can legally force you to pay back the money. After the SOL expires, you have the right of non-payment of debt. Unlike credit reporting time, SOL varies from state to state and starts from the date of last activity on the account.

 

Thomas Hogan attorney from CA says:

 

The time limit of 4 years runs from the date of the last transaction on the card. The transaction may be a purchase made on the card or a payment made to the credit card company towards the dues.

 

Perhaps this changes state to state but I have been seeing everywhere I look that the date of last activity is the date they use to start the clock. Haven't been shown otherwise.

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Ok.. so today I got the Plantiffs Reply Brief in Support of Plaintiff's Motion for Summary Judgement. She basically says all of my arguments against the Summary Judgment. Here is my question: In her response, she address the SOL by saying the last payment was 2008 so they are within their rights. There is NO documentation anywhere in any of the things they have filed that supports this and this is the first time in ANY of her briefs does she mention this. I was under the impression she was not allowed to introduce new evidence in her responses AND she cant introduce something she hasn't proven. I assume at this point, before the judge would rule, I would get to respond. I think she waited until the day he was going to rule on it, filed this, assumed he hasnt read through the documents so he will assume this is documented and rule in her favor. Should I respond with an objection? Or what?

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You're missing the point on how easy it is to defeat summary judgement.   You defeat summary judgement by showing there is a material issue of fact that is in dispute and that a full trial is needed and that reasonable minds would not all come to the same conclusion based on ONLY the evidence included to this date and with the motion. 

 

In other words you don't have to argue you would win at trial.  In fact you could probably lose at trial (don't think so here).  But that is not the standard of review.  

 

You might have followed my case and my deposition.  The reason I acted like a complete a$$ was because the disputed facts means I win no matter what.   In my case it has summary judgement written all over it, however, I won't file SJ because I don't want to win that easy, I want a trial. 

 

The facts are not disputed.  They sent a letter, I sent a refusal, they sent another letter and called after the refusal that set a C&D.  Their arguments are I set them up, I acted with unclean hands, I'm a professional litigant, I like suing debt collectors, and their futher communications with me were just to explain how the debt was caculated.   Okay, assuming everything they say is 100% (which pretty is) they lose.   You can be set up in a strict liability law, I do like suing collectors and I am a professional litigator (but never lost and my cases are always rock solid 100% and not even a hint of "legally" frivilous) and you can't have unclean hands under the FDCPA as the focus is 100% on the debt collector and the underlying debt is irrelevant.

 

So in my case we all could throw our hands up and say everybody is 100% correct however as a matter of law Coltfan wins and then argue the law not the facts.   Again, I don't want to do that but could.

 

That is the type of case summary judgement is for.  In your case just the issue of statute of limitations and the uncertain dates is a material dispute that needs a trial.   Do you have them on statute of limitations, who knows, maybe not, but it needs a trial, the facts are not undispted and clear cut.

 

When arguing against summary judgement the non moving party (you) gets all the benefit of the doubt and it's an incredibly high burden the other side has to overcome.   Don't get bogged down in arging a winner and a loser, you argue the need for a trial.  You argue certain "material facts" are not undisputed and clear cut.   You do that and you beat summary judgement.

 

Different levels of burdens but read what the Casey Anthony jurors said when interviewed.   They did not say she was innoncent, they said she was legally not guilty.   In collection cases if you read my posts you see I always advise people to argue they are no legally liable to the other side, not they don't owe the other side or the other side is not right, but they are not "legally liable"

 

Stay focused on the facts and the law.  Of course if you can just steam roll and win by proving your case do it, but remember, you were sued that means you get the luxury of picking apart the other sides case and Monday morning quarterbacking.   When they go SJ you get an even greater luxury of having every benefit go your way.   You couple that with a junk debt buyer like Midland having horrible and/or made up evidence and I can honestley say I know of no reason ever that anybody should lose to Midland by summary judgement.  It's pretty damn hard to lose at trial to Midland, but by summary judgement should be virtually impossible. 

 

Just stay focused on what you have to do to defeat summary judgement, not win the whole case. 

 

The one time a JDB filed SJ against me, at the hearing the JDB attorney talked for about 30 min.  I did not even make it to the podium before the judge put his hand out and said, motion denied.  He knew I would be up there for two hours hammering and my opposition was more than enough.  I just raised tons of material disputes, not tried to win my case.   Yes, it does sorta of go hand and hand but don't get bogged down with the who is right and wrong (yes, hard to do I know) but remember this is one stage in the game.  It's a crucially important stage but remeber where you are there for.  This is a motion for summary jdugement and that is all it is and that is all you have to defeat. 

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Not really a request for a trial but why a trial is needed.   You defeat their motion for summary judgement then you don't have to request a trial, it's just what happens.  Actually you want to make a jury demand.   And yes it sounds odd but you actually say you demand trial by jury.   Now some things that are a matter of law can't be tried by a jury but that is for another time.  

 

In Arkansas at least 30 days before trial you make a jury demand.   I'd make one, no way they want anything to do with a jury.  

 

Just focus on what I said in my post and the trial part will take care of itself.   Somethings with the law just naturally happen and after all the discovery a trial is just what takes place. 

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Well the Judge ruled against me the same day this was posted but it just updated today. I had called three times. I am not sure what to do next!

 

So sorry to hear. Let us know what happened and we can see if there are options.

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Yesterday I received a notice that we have a pretrial on 4/22 and then I looked online and it said the case was now closed and there was a note at the top that said Judgement for the Plaintiff on 3/7/2013. I have not received any documentation from the court. I plan on waiting to get my official notice. In the meantime I am going to research filing a motion to reconsider. I do think this is a long shot. But it is not in question that the Plaintiff has offered nothing that establishes this as my debt. I can only assume he used the affidavit as an establishment of my debt.  I am thinking of filing on the basis of new information that has come up and will bring Susan Rasmussens credibility in question with the cases she is listed as a robosigner from Midland. He has at this point not been presented with that information.

 

Here is what I have come up with so far but am not done researching and am not doing anything until I am notified by the court of the ruling:

 

DEFENDANT’S MOTION FOR RECONSIDERATION OF SUMMARY JUDGMENT

 

 

Now comes the Defendant respectfully requesting the court to reconsider the Summary Judgment awarded to Plaintiff for reasons documented below:

 

  1. New Information the court did not have that may have impacted the decision
    1. Facts presented

 

  • Plaintiff produced two statements that were dated July 1, 2009 and August 1, 2009.  (exhibit A) Neither statement listed a purchase, payment, nor how the balance was calculated to determine validity.
  • Plaintiff produced a “Bill of Sale.” (Exhibit B) The Bill of Sale also did not list any purchases or any documentation as to the last payment date to determine the Plaintiff to be within the Statute of Limitations or if there is a credit relationship with the Defendant.
    • Defendant implores upon the Court for close examination of these statements against the standard set forth by both Defendant and Plaintiff in their arguments.
  • Plaintiff produced an Affidavit from Susan Rassmussen, an employee of Midland, verifying their business practices are in line with the Fair Credit Act. No where in the affidavit is any purchase or last date of payment that can determine the statute of limitations.
    1. Information the court did not have that may have impacted the decision

Plaintiff argues that the affidavit of Susan Rasmussen is sufficient to establish a credit relationship between Plaintiff and Defendant.  Defendant is left to believe this was the basis for the decision as the documentation presented did not establish a credit relationship. Plaintiff is currently defending a number of law suits throughout the United States which allege abusive credit collection practices under various state and federal laws. Susan Rasmussen is personally named in some of those law suits. Susan Rasmussen is listed in class action lawsuit, Minnesota AG case of Swanson V Midland Funding as a robosigner. Robosigners are hired by debt collection companies to sign a blanket of avidavits without actually having the proof of the information. Currently, West Virginia’s Attorney General is suing Midland Credit Management and Midland Funding, LLC, both affiliates of Encore Capital.  The suit alleges that robo-signers were used to obtain default judgments in violation of state and federal law. There are several lawsuits across all states, including Ohio, that call Midland Funding’s debt collection practices. .  Based on the proven violations against Plaintiff’s business practices, particularly regarding the affidavits filed, Defendant argues that the affiants personal knowledge should at least be subject to examination at trial and is not worthy of consideration at the summary judgment phase of this case.

CONCLUSION

         For the reasons stated above, Defendant respectfully asks that the Court grant Defendants Motion to Reconsider.

 

 

 

Any input or thoughts are welcome! Thanks!!

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