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Being sued by Midland Funding LLC, halfway through hit a snag in discovery.


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I am currently the lucky receipient of a lawsuit brought on by Midland Funding LLC over an alleged credit card debt for the amount of $1,008.00.


They are being represented by Bowman, Heintz, Boscia and Vician and through my research over the past 2 months I have found that really neither Midland nor this law firm has very many fans.

 

My issue currently is I sent them what I thought was a pretty good Request of Production of Documents. I can post an example of that if need be. The prosecutions official response was a letter I received three days later, the body of which reads...

 

YOUR DISCOVERY REQUESTS WERE NOT PROPERLY FORMATTED PER THE INDIANA TRIAL RULES SO WE WILL NOT BE RESPONDING TO THEM. THANK YOU.

 

Bummer. I have been doing a lot of research during this whole ordeal and can not seem to find what "proper formatting" would look like. I have familiarized with as many Indiana Trial Rules as I can and no where in the Trial rules pertaining to discovery, Rules 33, 34 and 36 does it mention proper formatting.

 

What do I do now? I assume I just format it properly and resend it but like I mentioned above, no idea what that proper formatting is.

 

 

*********

 

Next question. In what I thought was a moment of genius I included with my answer a Motion to Strike Affidavit. This motion referred to their Affidavit of Debt signed by a Midland employee alleging he has intimate and personal knowledge of my account with Chase Bank.

 

Through research I found that Midland has been sued successfully on the grounds that those Affidavits are signed by employees who sign anywhere from 100-300 a day. My motion was simple, there was no way this guy had personal knowledge of my account when he didn't work for Chase. I can post a copy of the motion if necessary.

 

The prosecutions respone to that was a Motion in Opposition to Defendant's Motion to Strike. Fair enough.

 

Their argument was according to T.R. 9.2 they are requred to have an affidavit of debt in this kind of case. How does that argument make that affidavit any less heresay?!

 

They then included with that as an exhibit the bill of sale from Chase Bank. This bill of sale states no account numbers and is mostly greyed out and listed "Redacted"

 

Thoughts on how to counter attack this?

 

Thanks in advance to anyone that can help, I know that was quite the read.

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Did the send you any requests.? If they did, just copy the format. If they did not, go look on your courts website, a lot of them have forms. Use a generic one. I was able to format mine to look just like theirs in word 2010.

Did your motion to strike include he is testifying to hearsay? It needs to. Then in your requests for Rogs, ask for the name, address of the person with knowledge from original creditor. They will object, but that's ok. Post your requests here before you send them, lots of helpful people.

I don't know about the redacted thing, someone else will. I know there is one that may show it was redacted for purposes of litigation, and they can't do that, but I don't know which one.

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Unfortunately they have not communicated with me at all except once when I called them to ask for an extension before answering (they were shocked but gave it to me) and when they have counter attacked my discovery request and motion. I have not received anything else from them.

 

I will post here what I sent for the discovery request first (I apologize if it's long) and I do believe this is the forum I snagged most of this request from:

 

------------------------------

 

REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF


COMES NOW Defendant DEFENDANT, pursuant to T.R. 33 and T.R. 34, and requests Plaintiff, XXXXXX to produce the following documents for inspection and copying at the law offices of Plaintiff’s attorney, ADDRESS within thirty (30) days or as counsel may mutually agree.


DEFINITIONS
The following definitions are to be used in responding to the following interrogatories.
A. “Plaintiff,” means PLAINTIFF or any agent, employee, officer, director, or any other person acting on its behalf.
B. “Defendant” means, DEFENDANT an individual.
C. “Document,” means all original writings of any nature or all copies thereof, regardless of whether or not such copies differ in any way from the originals, in your possession or control, wherever located, and includes, but is not limited to, contracts, agreements, records, memoranda, handwritten notes, working papers, letters of correspondence, invoices, statements, purchase orders, bills of lading, minutes and reports.
D. “Credit Application”, means the Original Signed Application bearing Defendant’s signature for any contract between Plaintiff and Defendant or Defendant and CHASE BANK USA NA
DOCUMENTS TO BE PRODUCED


1. ALL documents evidencing any communication between Plaintiff and Defendant in connection with the Agreement and Account described in Plaintiff’s Petition, including letters and correspondence.
2. The alleged credit application from Account Number XXXXXXXXXXXX0312 mentioned in the AFFIDAVIT OF DEBT bearing the defendant’s signature;
3. The alleged credit agreement from Account Number XXXXXXXXXXXX0312 mentioned in the AFFIDAVIT OF DEBT that states interest rate, grace period, terms of repayment, et cetera;
4. Itemized statements or credit card statements from Account Number XXXXXXXXXXXX0312 mentioned in the AFFIDAVIT OF DEBT that demonstrate how the alleged amount of $1008.21 was calculated;
5. A contract, agreement, assignment, or other means demonstrating that Midland Funding LLC had the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number XXXXXXXXXXXX0312 mentioned in the AFFIDAVIT OF DEBT
6. Letter(s) sent to defendant by Midland Funding LLC, demonstrating an attempt to collect on the alleged debt, Account Number XXXXXXXXXXXX0312 mentioned in the AFFIDAVIT OF DEBT
7. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;
8. Any and all further documents that you believe establish that plaintiff had an outstanding account or debt related to Account Number XXXXXXXXXXXX0312 mentioned in the AFFIDAVIT OF DEBT
9. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt;
10. Any and all written communication, received by the plaintiff and/or plaintiff’s attorney from the defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff’s and/or plaintiff’s attorney accessing of defendant’s credit report(s).
11. Any and all communications from plaintiff and/or plaintiff’s attorney to the defendant explaining why plaintiff and/or plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s);
12. Any and all credit report(s) plaintiff and/or plaintiff’s attorney obtained from any credit reporting agency concerning the defendant;
13. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or Account Numbers XXXXXXXXXXXX0312 mentioned in the AFFIDAVIT OF DEBT


DEFENDANT
 

_______________________________

DEFENDANT

ADDRESS

CERTIFICATE OF SERVICE

The undersigned certifies that the above documents were served on all parties in the above cause by depositing an original and one copy in the U.S. Mail, postage prepaid, in an envelope addressed to: ADDRESS

 

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Now I did find this in Indiana Law: Format of interrogatory and response. A party who serves written interrogatories under this rule shall provide, after each interrogatory, a reasonable amount of space for a response or an objection. Answers or objections to interrogatories shall include the interrogatory which is being answered or to which an objection is made. The interrogatory which is being answered or objected to shall be placed immediately preceding the answer or objection.

 

So I assume that by not leaving any spaces that is the "improper formatting"?

 

I will also include my Motion to Strike Affidavit of Debt

 

------------------------------------------------------------------

 

DEFENDANT’S MOTION TO STRIKE AFFIDAVIT

 

            Comes now, defendant, pro se, and makes request that the court strike the AFFIDAVIT OF DEBT entered by plaintiff from these proceedings.

1. Plaintiff has submitted into evidence an AFFIDAVIT OF DEBT IN SUPPORT OF PLAINTIFF'S CLAIM (hereinafter referred to as "Affidavit").

2. Plaintiff has provided no evidence to support their claim that they are the owner of said debt. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

3. Said Affidavit pertains to acts and events that allegedly occurred between Defendant and the original creditor, which plaintiff has identified in their complaint as Chase Bank USA NA. Plaintiff is clearly a third party and not the original creditor by their own admission.

4. At no time was the creator of the Affidavit, or any of Plaintiff's employees, present to witness any alleged acts or creation of the records of any alleged transactions between Defendant and the original creditor.

5. As such, said Affidavit falls under the hearsay rule and is inadmissible as evidence.

6. Defendant further states that the Affidavit is not subject to the Hearsay Business Records Exemption because it was not made at or near the time of the alleged acts or events.

7. The information contained in the Affidavit is merely an accumulation of hearsay.

8. Upon information and belief, the creator of the document is not currently and has never been employed with the original creditor, and therefore cannot possibly have personal knowledge of how said original creditor's records were prepared and maintained, and is unqualified to testify as to the truth of the information contained in the Affidavit.


WHEREFORE, the Defendant prays this Honorable Court that Plaintiff’s Affidavit of Debt be stricken from evidence in the above action.

 

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I believe they included the "Bill of Sale" in their objection to my motion to counter argument 2. I still don't see how just because they are required to supply an affidavit that it makes the affidavit not heresay. There reply to the Motion was this...

 

-------------------------------------------------------------------

 

MOTION IN OPPOSITION TO DEFENDANT'S MOTION TO STRIKE

 

Comes now Plaintiff for its motion, states as follows:

 

1. That on January 1, 2011, the Indiana Supreme Court amended Indiana T.R. 9.2 to require "when any pleading allowed by the rules is founded on an account, an affidavit of debt, in a form substantially similar to that which is provided in Appendix A-2 of they rules shall be attached"

 

2. That Plaintiff's Complaint filed January 15, 2013, is attached hereto and incorporated herein as Plaintiff's Exhibit "A"

 

3. That Plaintiff has submitted an Affidavit of Debt ina form substantially similar to that required under Appendix A-2 of the RUles of Trial Procedure, in compliance with Indiana T.R. 9.2.

 

4. The Defendant is apparently unaware of the requirements contained in Indiana T.R. 9.2 in its current form and the requirements thereof.

 

5. The Defendant's Motion to Strike the Affidavit is both unfounded in law and fact.

 

6. That Plaintiff attaches hereto as Exhibit "B" the BIll of Sale.

 

WHEREFORE, Plaintiff prays the Court deny Defendant's Motion to Strike Affidavit.

 

-----------------------------------------------------------------

 

I await further assistance and am available to answer any questions. I truly appreciate any help given.
 

 

 

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Reading through the arbitration topic one concern comes to mind. I do not have a copy of the original agreement as the account is alleged from 2006. The Plaintiff did state I made payment on the account in 2010, (i don't know that I did), which unfortunately prevents a SOL defense.

Is there a way to an agreement from 2006?

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Thank you Savoir! Looks like arbitration would be under the AAA and the $500 filing fee is reimbursed back to me. The agreement says the reimbursement is from "us". At this point I assume "us" is Midland Funding and not Chase.

 

So if I understand correctly by electing Arbitration I am essentially making them the offer of pay $500 to maybe win $1000?

 

I do not know if Arbitration is the way I need/want to go but it never hurts to have more ammo. I have been searching what can void Arbitration in Indiana and have not been able to find any information on that particular subject.

 

Still awaiting replies on the current case matter. No rush.

 

Again thank you to Savoir, Tomntex and shellieh98. Your replies have been helpful! :-D

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Are you just taking plaintiff's word that your discovery was ill formatted?

I would seek either free legal aid or an hour of an attorneys time to ask that question and get it resolved.

They may just be blowing smoke.............

 

As an addendum .......... you may use any years agreement during which the alleged account was active if it has a survivability clause.

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Arbitration becomes effective by raising the plaintiff's litigation costs to the level that it becomes inefficient to pursue the claim.

It also helps if the agreement contains a choice of law clause.

SOL of the foreign state may be shorter than your state's.

Arbitrator will typically ask which state's laws you want to use.

 

Strategy and Steps of Arbitration

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Forgive my ignorance Savoir but what state would the foreign state be?

And while my first thought was the Plaintiff was just being difficult, Indiana Trial Rule does state that a request for production does need to include enough space to fit a response and my formatting did leave absolutely 0 space.

 

That is the only improper formatting I could see though.

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Chase Bank is based in Delaware ........ their SOL is 3 years. That's what I mean by foreign law.

Their agreement states that it is governed by Delaware & Federal law.

 

Quote:

GOVERNING LAW
THE TERMS AND ENFORCEMENT OF THIS AGREEMENT AND YOUR ACCOUNT SHALL
BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND, TO
THE EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE, WITHOUT REGARD
TO CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE, WHERE WE AND
YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE
THE ACCOUNT.

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LR48-TR26-23 DISCOVERY TIME LIMITS

A. Discovery shall not be permitted in small claims actions, except by leave of Court. 

B. In all other cases, discovery shall be completed within six months after the case is at 

issue, unless otherwise ordered by the Court. For good cause shown, time may be extended for 

completion of discovery.

C. Pursuant to Indiana Rules of Court, routine discovery shall not be accepted for filing 

except by leave of Court. However, the Court will accept for filing a one-page Notice of Service 

of Discovery or Notice of Compliance.

 

LR48-TR33-24 LIMITATION ON INTERROGATORIES

Interrogatories shall be limited to a total of fifty (50), including subparts, and be 

used solely for the purpose of discovery and shall NOT be used as a substitute for the taking of a 

deposition. For good cause shown, additional interrogatories may be permitted.
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I made the assumption that if plaintiff bothered to reply to improperly formatted discovery requests that it was in civil court.

Why bother to answer at all if discovery wasn't allowed ?

I've made assumptions before that have come back to bite me so ........ OP?

 

Small claims or Civil?

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Here is some more discovery  rules from the Northern District:

 

 

N.D. Ind. L.R. 37-1 Resolving Discovery Disputes
 
(a) Certification Required. A party filing any discovery motion must file a separate
certification that the party has conferred in good faith or attempted to confer
with other affected parties in an effort to resolve the matter raised in the motion
without court action. The certification must include: 
 
(1) the date, time, and place of any conference or attempted conference; and 
(2) the names of the parties participating in the conference. 
 
(b ) Failure to File Certification. The court may deny any motion described in
subdivision (a)—except those motions brought by or against a person appearing
pro se—if the required certification is not filed. 
 
Not sure which division your in but maybe this helps.
 
HP
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It's in Superior Court in Porter County. From what I read it's a civil court.

 

Also JAMS is not listed on the arbitration agreement just AAA.

It does make sense that if I need to file a motion for discovery why would the plaintiff even bother responding at all?

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I'm not saying that arbitration is the best course of action to take. You have the same case in court as you do in arbitration.

The advantage would be the cost factor and the possibility of a shorter SOL plus, a less formal atmosphere than in court.

The real disadvantage in arbitration is that you may give up your right to an appeal if the arbitrator makes a bad decision and you may be limited in the scope of discovery.

 

On a side note: If you decide on arbitration; don't go to far into litigation as some courts have determined that you waive your right to arbitration and are trying to put plaintiff at an unfair disadvantage.

 

As for your agreement; you may use the 2005 agreement (with JAMS) if this alleged account was active during that year; it has a survivability clause which states that the option of arbitration survives any changes in your agreement.

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LR48-TR26-23 DISCOVERY TIME LIMITS
A. Discovery shall not be permitted in small claims actions, except by leave of Court. 
B. In all other cases, discovery shall be completed within six months after the case is at 
issue, unless otherwise ordered by the Court. For good cause shown, time may be extended for 
completion of discovery.
C. Pursuant to Indiana Rules of Court, routine discovery shall not be accepted for filing 
except by leave of Court. However, the Court will accept for filing a one-page Notice of Service 
of Discovery or Notice of Compliance.
 
LR48-TR33-24 LIMITATION ON INTERROGATORIES
Interrogatories shall be limited to a total of fifty (50), including subparts, and be 
used solely for the purpose of discovery and shall NOT be used as a substitute for the taking of a 
deposition. For good cause shown, additional interrogatories may be permitted.

 

 

 

In response to Huey I did find this in the trial rules for where my case will be. Trial Rule 34.B

 

Procedure. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request may specify the form or forms in which electronically stored information is to be produced. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. Service is dispensed with if the whereabouts of the parties is unknown.

 

The party upon whom the request is served shall serve a written response within a period designated in the request, not less than thirty [30] days after the service thereof or within such shorter or longer time as the court may allow. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless it is objected to, including an objection to the requested form or forms for producing electronically stored information, stating in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. If objection is made to the requested form or forms for producing electronically stored information--or if no form was specified in the request--the responding party must state the form or forms it intends to use. The party submitting the request may move for an order under Rule 37(A) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

 

Unless the parties otherwise agree, or the court otherwise orders, a party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

If a request for electronically stored information does not specify the form or forms of production, a responding party must produce the information in a form or forms in which it is ordinarily maintained or in a form or forms that are reasonably usable.

 

A party need not produce the same electronically stored information in more than one form.

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what can void Arbitration in Indiana and have not been able to find any information on that particular subject.

 

 

 

A judge who decides you decided to get into litigation, filed improper discovery and an improper motion, is what. ARB should be invoked immediately, not this far into a case. Once you start to litigate, the court will view ARB as a desperation move. Your main issue is that you don't know what you're doing and these lawyers are eating your lunch. You fix that by posting stuff here BEFORE you send it, not after. It's too late do fix it then.

 

You can resend the discovery. Leave out the definitions, they are just inviting objections. Just say something like "these requests shall be responded to per the Indiana rules of civil procedure." Make sure it is spaced out, each request is numbered, type "ANSWER" above the space you leave, and make sure you include the case header at the top. Fill out Racecar's 20 questions, too, so we know what this is about. You can forget trying to use DE's SOL in Indiana, they don't have a borrowing statute. You're stuck with theirs.

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And the last question before I head to work for the day... Does anyone know how I should proceed as far as their "Motion to Dismiss My Motion" goes?

 

Sorry for the multiple posts just now, I kept thinking of things to add.

 

Thanks again for everyone that is taking the time to help!

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See what you're up against? There is no such thing. They should have titled it as their objection to your motion. If I were you I'd just withdraw your motion, it wasn't properly drafted. That way the judge won't see it and make you out for an internet lawyer. You file a notice to withdraw defendant's motion, one paragraph.

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what can void Arbitration in Indiana and have not been able to find any information on that particular subject.

 

 

 

A judge who decides you decided to get into litigation, filed improper discovery and an improper motion, is what. ARB should be invoked immediately, not this far into a case. Once you start to litigate, the court will view ARB as a desperation move. Your main issue is that you don't know what you're doing and these lawyers are eating your lunch. You fix that by posting stuff here BEFORE you send it, not after. It's too late do fix it then.

 

You can resend the discovery. Leave out the definitions, they are just inviting objections. Just say something like "these requests shall be responded to per the Indiana rules of civil procedure." Make sure it is spaced out, each request is numbered, type "ANSWER" above the space you leave, and make sure you include the case header at the top. Fill out Racecar's 20 questions, too, so we know what this is about. You can forget trying to use DE's SOL in Indiana, they don't have a borrowing statute. You're stuck with theirs.

 

Thank you for the honesty and quality information. I will adjust the discovery as you have instructed!

1. Who is the named plaintiff in the suit? Midland Funding LLC as Successor in Interest to Chase Bank NA

2. What is the name of the law firm handling the suit? Bowman, Heintz, Boscia and Vician Professional Corporation, Attorneys at Law

3. How much are you being sued for? 1008.00

4. Who is the original creditor? Chase Bank

5. How do you know you are being sued? (You were served, right?) I was served by mail at my previous address. (Parent's house)

6. How were you served? Mail

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I am aware of.

9. What state and county do you live in? Indiana, Porter Co.

10. When is the last time you paid on this account? I checked my credit report and have found no payments in the last 4 years. The plaintiff states I payed in 2010.

11. What is the SOL on the debt? 6 years

12. What is the status of your case? Suit served? Motions filed? Served, Motions Filed.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

14. Did you request debt validation before the suit was filed? No, have never been contacted by Midland before.

15. How long do you have to respond to the suit? Yes

      Did you receive an interrogatory (questionnaire) regarding the lawsuit? No.

Plaintiff is claiming

 

        1. I'm indebted for goods or services, etc. in the amount of 1008.21.

 

        2. That plaintiff is the actual and bonafide owner of the account.

 

        3. That the sum of 1008.21 is now due and unpaid together with interest and costs pursuant to Indiana law.

 

WHEREFORE, plaintiff demands judgment against the defendants for the sum of $1008.21 plus accrued interest in the amount of $0.00, plus additional interest at the rate of .00% per annum from November 19, 2012 and costs and all other proper relief.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? They sent an Affidavit of Debt and a Affidavit of Non-Military Service.

 

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