vs. MIDLAND FUNDING atty sends documents that look questionable

[teachersrule]

I received a letter from Midland attorney two weeks past the time I requested to produce documents. In the letter: As part of Plaintiff's ongoing duty to produce documents to your discovery request, please find the enclosed additional documents in support of Plaintiff's case. All Plaintiff's initial objections and assertions of privilege are incorporated herein by reference. Plaintiff reserves the right to supplement these materials pursuant to the Oregon Rules of Civil Procedure.

 

These were enclosed:

 

1) An Affidavit of Sale of Account By Original Creditor after the time allowed to produce documents. It was signed by a person claiming to be the Asst Vice President of CitiFInancial, Inc. (OC) and notarized - the signature was illegible. This was from Missouri. I googled the asst. VP's name and the name of the notary, and there were no hits. I researched the notary on the Missouri Sec. of State website and "No records were found for the search criteria" popped up when I entered his name.

 

2) The Certificate of Conformity was signed and that lawyer does have a website and to my knowledge, is a practicing attorney. He is from Missouri.

 

3) There is a Bill of Sale and Assignment to Midland in San Diego, CA. This guy doesn't come up for Citi on google...only on another forum which states he signed the poster's BOS. 

 

4) Information on my alleged acct. This is what is typed on the bottom: Data printed by Midland Credit Management, Inc. from electronic records provided by CitiFinancial Inc. pusuant to the Bill of Sale/Assignment of Accounts dated XX/XX/XXXX in connection with the sale of accounts from CitiFinancial Inc. to Midland Funding LLC.

 

Midland's attorney also refers to me as the incorrect sex...any way that can be cause to dismiss for technicality? just wondering!

 

Should I file a motion to strike the affidavit? 

I have a mandatory arbitration for the end of the month. Should correspondence be mailed to the arbitrator, or file with the court?

 

Finally, I may be slow to respond because my sister just passed away, so I am dealing with a lot of personal issues right now. Please know I am thankful for all the help you can give me. 

[BV80]

@teachersrule

 

Just for the heck of it, call the notary office (or whatever it's called) in MO.  Give them the name of the notary, and let them do the search.  I would not make any claims based upon an online search.

[chrisbbadd]

I had an incident where I was assisting a friend in a case.  We questioned everything the junk debt buyer submitted and also had a resident of Virginia write to the Virginia Commonwealth Notary and had them send us what they received from the Commonwealth and low and behold the Notary signature on file was not the signature certified on an Affidavit of Debt used against my friend. This happens all the time by the way.  In regards to them not having your correct gender, I would also use that to discredit them.  I know some people are so sick and tired of 4th or 5th generation copies of supposed bill of sales being used which aren't even legibile, that they are now making copies of one hundred dollar bills and filing them with their answers.  In an honest world, the original document would be filed in a lawsuit for money.  But when junk debt that has already been satisfied through write-offs on corporate taxes and bad debt insurance payments, there is no way an original creditor is going to supply original evidence of debt in these bulk sales to junk debt buyers, and you know they send copies of "debt" to numerous third parties because you have been dunned by nurmerous Attorneys/junk debt buyers many times on the same account. You all know on Mortgages that they were selling them over and over in securitization schemes, while at the same time betting that the debt would never get repayed and consequently profiting multiple ways.

[Flyerfan]

Sorry to hear about your sister. Prayers are with you.

 

Does the notary have a commission number associated with them? It should. Use that as well in your google search.

[teachersrule]

Thanks for the suggestions, BV80 and Flyerfan. I just hung up with the state of Missouri, and there was a notary by that name but he resigned in 2012. The paperwork I was sent was notarized in 2011. Since the signature is illegible, I asked the MO office for a document to verify his signature via fax. 

 

As for filing a motion to strike the affidavit of sale, should I send that to the court or arbitrator?

Thanks for the advice. 

[Huey Pilot]

As for filing a motion to strike the affidavit of sale, should I send that to the court or arbitrator?

 

 

This is Oregon and it's mandatory Court Adjoined Arbitration. You have to send your motion with memorandum, to the Arbitrator. It's also a good idea to file it with the Court for your later appeal.

 

It's a five step process:

 

1 - Telephonic conference with the Plaintiff's counsel on the motion (Statement required by UTCR 5.050 conference)

2 - Motion to Strike Affidavit

3 - Memorandum of Points and authorities

4 - Your sworn Affidavit - NOTORIZED

5 - Proof of Service

6 - Copies of the documents you want to strike.

 

HP

[Flyerfan]

FYI - Huey is the best in Oregon and has beat Midland there. 

[teachersrule]

Thanks, HP. 

 

Please read the motion I plan to file in court objecting to a telephonic conference. Any suggestions would be welcomed! Also, since there is an arbitrator assigned, I will mail him and Midland a copy. Thanks.

 

 

(In legal format with case #, etc...)
      Defendant's Opposition to Plaintiffs
      Motion to Appear by Telephone

 

 

 

 

COMES the Defendant, appearing PRO SE to OBJECT the MOTION FOR TELEPHONIC APPEARANCE by the Plaintiff or Plaintiff’s attorney. Pursuant to UTCR 5.050 (2)(a): If appearance or argument by telecommunication is requested, the first paragraph of the pleading, motion, response, or other initiating document must include the names and telephone numbers of all parties served with the request. The request must be granted. Plaintiff failed to list names or telephone numbers of the parties were included in said motion.

 

Furthermore, the Defendant objects to the testimony of any witness(s) by telephone for the following reasons:

 

1. Defendant has not subpoenaed the witness, but the Plaintiff should be prepared to bring its witness(s) to testify in person, regardless of economic status.

 

2. The Defendant must be provided sufficient opportunity to test the credibility of the witness(s) and/or the substance of their testimony. This can not be done telephonically as there is no way to judge body-language, observe facial-expressions, make eye-contact and/or reveal coaching.

 

3. By allowing the witness(s) to attend telephonically, neither the court nor Defendant has the ability to verify the named identity of the named witness(s). There is no way to prove the person phoning in who he/she says they are, the Plaintiff could substitute anyone. The Defendant reserves the right to face his accuser(s).

 

4. By appearing telephonically, the Defendant has no way to confirm if notes are, or are not, being referenced.

 

In conclusion, It is quite unjust, particularly as a Pro Se Defendant, without staff or resources, to not be afforded such an opportunity. Defendant is clearly prejudiced by violation of Defendants right to confrontation.  It's unfair and an extraordinary abuse of the process.

 

The Defendant Respectfully asks the Court to Deny Plaintiffs Motion to Allow Witness to Appear by Telephone

[Flyerfan]

Well done on the motion, however, I would leave this out:

 

It's unfair and an extraordinary abuse of the process.

 

You did so well with your motion. You don't want to put at the end of it. You stated "the defendant is clearly prejudiced". That is the professional way of saying "Not fair!".  Stick with clearly prejudiced and leave it at that.

 

Good luck on your motion.

[teachersrule]

Thanks for your quick response, Flyerfan. I also agree that HP is the best. I have read many of his posts.

[BV80]

@teachersrule

 

ORS 45.400(3):

 

Except as provided under subsection (4) of this section, the court shall allow telephone testimony under this section upon a showing of good cause. The court may not allow the use of telephone testimony in any case if:

 

(a) The ability to evaluate the credibility and demeanor of a witness or party in person is critical to the outcome of the proceeding;

 

(b) The issue or issues the witness or party will testify about are so determinative of the outcome that face-to-face cross-examination is necessary;

 

© A perpetuation deposition under ORCP 39 I is a more practical means of presenting the testimony;

 

(d) The exhibits or documents the witness or party will testify about are too voluminous to make telephone testimony practical;

 

(e) Facilities that would permit the taking of telephone testimony are not available;

 

(f) The failure of the witness or party to appear personally will result in substantial prejudice to a party to the proceeding; or

 

(g) Other circumstances exist that require the personal appearance of a witness or party.

 

 

The taking of testimony by telephone over the objection of a party violates ORS 45.010 and ORS 45.040,. State ex rel Juv. Dept. v. Gates, 86 Or.App. 631, 634, 740 P.2d 217 (1987), rev. den. 305 Or. 45, 749 P.2d 1182 (1988).

[teachersrule]

@BV80 Thank you. Should I replace my objections with the information you sent, or incorporate your findings in the motion like this:

 

 

COMES the Defendant, TEACHERSRULE, appearing PRO SE to OBJECT the MOTION FOR TELEPHONIC APPEARANCE by the Plaintiff or Plaintiff’s attorney. Pursuant to UTCR 5.050 (2)(a): If appearance or argument by telecommunication is requested, the first paragraph of the pleading, motion, response, or other initiating document must include the names and telephone numbers of all parties served with the request. The request must be granted. Plaintiff failed to list names or telephone numbers of the parties were included in said motion.

 

Furthermore, per ORS 45.400(3):

Except as provided under subsection (4) of this section, the court shall allow telephone testimony under this section upon a showing of good cause. The court may not allow the use of telephone testimony in any case if:

 

(a) The ability to evaluate the credibility and demeanor of a witness or party in person is critical to the outcome of the proceeding;

 

(b) The issue or issues the witness or party will testify about are so determinative of the outcome that face-to-face cross-examination is necessary;

 

© A perpetuation deposition under ORCP 39 I is a more practical means of presenting the testimony;

 

(d) The exhibits or documents the witness or party will testify about are too voluminous to make telephone testimony practical;

 

(e) Facilities that would permit the taking of telephone testimony are not available;

 

(f) The failure of the witness or party to appear personally will result in substantial prejudice to a party to the proceeding; or

 

(g) Other circumstances exist that require the personal appearance of a witness or party.

 

The taking of testimony by telephone over the objection of a party violates ORS 45.010 and ORS 45.040,. State ex rel Juv. Dept. v. Gates, 86 Or.App. 631, 634, 740 P.2d 217 (1987), rev. den. 305 Or. 45, 749 P.2d 1182 (1988).

 

 

In conclusion, It is quite unjust, particularly as a Pro Se Defendant, without staff or resources, to not be afforded such an opportunity. Defendant is clearly prejudiced by violation of Defendants right to confrontation. 

 

The Defendant Respectfully asks the Court to Deny Plaintiffs Motion to Allow Witness to Appear by Telephone.

[BV80]

@teachersrule

 

I"m not an attorney, nor am I an expert on writing motions or objections to motions.  However, I do know that if you can include law (statutes) and case law that supports your argument, it's beneficial to you.

 

In regard to the statute, I'd elaborate on the section(s) of that statute that would apply to you.  One that comes to mind would be (a). 

[teachersrule]

@Flyerfan @BV80

 

I agree with BV80 that if I can include statutes and case law, it's beneficial would be beneficial to me. I have edited to include the statutes, but I am not sure this is proper format. I highlighted in red what I have taken from BV80. Please tell me what you think.

 

 

COMES the Defendant, TEACHERSRULE, appearing PRO SE to OBJECT the MOTION FOR TELEPHONIC APPEARANCE by the Plaintiff or Plaintiff’s attorney. Pursuant to UTCR 5.050 (2)(a): If appearance or argument by telecommunication is requested, the first paragraph of the pleading, motion, response, or other initiating document must include the names and telephone numbers of all parties served with the request. The request must be granted. Plaintiff failed to list names or telephone numbers of the parties were included in said motion.

 

Furthermore, the Defendant objects to the testimony of any witness(s) by telephone for the following reasons and referencing ORS 45.400(3)(a)( ©(f)(g):

 

1. Defendant has not subpoenaed the witness, but the Plaintiff should be prepared to bring its witness(s) to testify in person, regardless of economic status.

 

2. The Defendant must be provided sufficient opportunity to test the credibility of the witness(s) and/or the substance of their testimony. This can not be done telephonically as there is no way to judge body-language, observe facial-expressions, make eye-contact and/or reveal coaching.

 

3. By allowing the witness(s) to attend telephonically, neither the court nor Defendant has the ability to verify the named identity of the named witness(s). There is no way to prove the person phoning in who he/she says they are, the Plaintiff could substitute anyone. The Defendant reserves the right to face his accuser(s).

 

4. By appearing telephonically, the Defendant has no way to confirm if notes are, or are not, being referenced.

 

In conclusion, It is quite unjust, particularly as a Pro Se Defendant, without staff or resources, to not be afforded such an opportunity. Defendant is clearly prejudiced by violation of Defendants right to confrontation.

 

The Defendant Respectfully asks the Court to Deny Plaintiffs Motion to Allow Witness to Appear by Telephone.

 

The taking of testimony by telephone over the objection of a party violates ORS 45.010 and ORS 45.040,. State ex rel Juv. Dept. v. Gates, 86 Or.App. 631, 634, 740 P.2d 217 (1987), rev. den. 305 Or. 45, 749 P.2d 1182 (1988)

 

 

Signed on this day XXXXXXX

[BV80]

There is no way to prove the person phoning in who he/she says they are, the Plaintiff could substitute anyone.  The Defendant reserves the right to face his accuser(s).

 

 

 

This is just me being picky.  I'm not sure I'd add those 2 sentences.  The 1st sentence in that paragraph speaks for itself.

 

 

 

4. By appearing telephonically, the Defendant has no way to confirm if notes are, or are not, being referenced.

 

 

I might state "notes and/or records". 

 

5.  Defendant would be unable to ascertain the origin of any records or any information contained in notes to which the telephonic witness might be referring, 

 

Something like that.

[BTO429]

One thing you forgot to include is the statement under penalty of perjury

 

comes now the defendant, pro se,under the penalties of perjury, and states the following:

[BTO429]

 

I received a letter from Midland attorney two weeks past the time I requested to produce documents. In the letter: As part of Plaintiff's ongoing duty to produce documents to your discovery request, please find the enclosed additional documents in support of Plaintiff's case. All Plaintiff's initial objections and assertions of privilege are incorporated herein by reference. Plaintiff reserves the right to supplement these materials pursuant to the Oregon Rules of Civil Procedure.

 

These were enclosed:

 

1) An Affidavit of Sale of Account By Original Creditor after the time allowed to produce documents. It was signed by a person claiming to be the Asst Vice President of CitiFInancial, Inc. (OC) and notarized - the signature was illegible. This was from Missouri. I googled the asst. VP's name and the name of the notary, and there were no hits. I researched the notary on the Missouri Sec. of State website and "No records were found for the search criteria" popped up when I entered his name. Affidavits are hearsay, but this on would fall under the business exception to the hearsay rule. But, unless the person attesting to whatever is said in that affidavit is not in court where you can cross examine him/her it is hearsay and means nothing. If that person cannot be in court and attest to the fact that they were the person whom prepared the affidavit, then the affidavit is moot. You cannot cross examine a piece of paper, and just the shear statement of an affiant does not automatically make it true,

 

2) The Certificate of Conformity was signed and that lawyer does have a website and to my knowledge, is a practicing attorney. He is from Missouri.

 

3) There is a Bill of Sale and Assignment to Midland in San Diego, CA. This guy doesn't come up for Citi on google...only on another forum which states he signed the poster's BOS. Does this bos specifically show your alleged account?

 

4) Information on my alleged acct. This is what is typed on the bottom: Data printed by Midland Credit Management, Inc. from electronic records provided by CitiFinancial Inc. pusuant to the Bill of Sale/Assignment of Accounts dated XX/XX/XXXX in connection with the sale of accounts from CitiFinancial Inc. to Midland Funding LLC. How can the plaintiff assure the court that citi or someone else tampered with or entered incorrect or false information in this document. We all know that the reliability of electronic media is not 100% reliable, especially when the plaintiff was not the one that produced or entered data in this document, the document is unreliable and holds no weight whatsoever

 

Midland's attorney also refers to me as the incorrect sex...any way that can be cause to dismiss for technicality? just wondering! Not really they can just file an amended answer

 

Should I file a motion to strike the affidavit? since it was late file a motion to preclude plaintiffs late discovery.

I have a mandatory arbitration for the end of the month. Should correspondence be mailed to the arbitrator, or file with the court?

 

Finally, I may be slow to respond because my sister just passed away, so I am dealing with a lot of personal issues right now. Please know I am thankful for all the help you can give me. 

 

If these were filed late you need to or should have filed a motion to preclude plaintiffs late discovery.

 

Since you have a death in the family file a motion for continuance for 60 days or so.

[Flyerfan]

There is no way to prove the person phoning in who he/she says they are, the Plaintiff could substitute anyone.  The Defendant reserves the right to face his accuser(s).

 

 

This is just me being picky.  I'm not sure I'd add those 2 sentences.  The 1st sentence in that paragraph speaks for itself.

 

Not picky, I agree. Make your statement and move on to the next. No need to repeat it in other words.

 

Overall, very nice job.

[teachersrule]

Ugh. I sent the objection out yesterday without including the statement under penalty of perjury. I hope it doesn't get thrown out bc of that oversight. I will look into the file a motion for continuance for 60 days or so and motion to preclude. Thanks for that, BTO429.

 

I did take out two sentences. Thanks BV80 and Flyerfan.