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I am being sued by Midland Funding. My first notice of this was being served, Sept. 2012. I had no other contact prior. I was given 20 days to respond in the summons. In my response I requested multiple times for debt validation, although I never sent an actual letter because I was served first. I sent in a motion requesting for the case to be dismissed. Had my court date on this where the judge refused my answers stating they were not in my own words because I had help with my answers having never been through this before, and she denied my motion for dismissal, March 2013. She gave me 20 days to file my answers again in my own words. I filed my answer in that time frame and again stated have never received validation although it was requested in my original answers. In May I received Plaintiffs motion for summary judgment and memorandum of Law in support there of, Affidavit of account signed by Mycah Struck of MCM, some cc statements, a bill of sale with many areas redacted and signed by a Team Manager of Chase, A closing statement with many areas redacted with the Chase logo, affidavit of sale of account by original creditor duly sworn by Martin Lavergne (which I have read is part of the robo signing)Field data a statement from MCM that says Notice of New Ownership and Pre-Legal Review dated 1-16-12, Then 2 pages of something I can not read the font is so small I don't know if anyone could read it.

That's a brief history of this, I don't know what I am to do next. Do I wait it out for a court date? Do I respond? I thought that a CA had thirty days to respond to your request, is this correct? I have read so much I am confused. Any advise that you can give would be greatly appreciated.

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Debt validation is to late once a suit has been filed. They do not have to do it.

Search for fsggirl thread and read. She is from Florida, and I think there is a lot of info in there for you. You need to beat the MSJ then we can help you prepare your defense.

You need to oppose the MSJ, do a search for threads like that.

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Your being sued debt validation is useless, I would answer plaintiff's complaint and send some discovery to the plaintiff.

It may be a little late to start studying.

http://phonl.com/fl_law/rules/frcp/frcp1140.htm

http://phonl.com/fl_law/rules/frcp/frcp1100.htm

http://phonl.com/fl_law/rules/frcp/frcp1110.htm

http://phonl.com/fl_law/rules/frcp/frcp1160.htm

http://phonl.com/fl_law/rules/frcp/frcp1280.htm RULE 1.280 GENERAL PROVISIONS GOVERNING DISCOVERY

http://phonl.com/fl_law/rules/frcp/frcp1340.htm RULE 1.340 INTERROGATORIES TO PARTIES

http://phonl.com/fl_law/rules/frcp/frcp1350.htm RULE 1.350 PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES

 

http://phonl.com/fl_law/rules/frcp/frcp1370.htm RULE 1.370 REQUESTS FOR ADMISSION

http://phonl.com/fl_law/rules/frcp/frcp1510.htm RULE 1.510 SUMMARY JUDGMENT I think you will be needing to study this one, If you don't answer the complaint.

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From what I have read so far I am suppose to respond to the MSJ? How much time do I have for this? The MSJ is dated April 30.

I called the court, they have no idea if their is a time to have an answer in. She said your next step is a hearing and you can either respond to the MSJ or not. So basically not very helpful. Basically the MSJ states they are filing in accordance with Florida Rule of Civil Procedure 1.510 and support here of

1. Defendant has filed answer to the complaint in the above-styled cause requesting debt validation

2. Attached hereto are documents in support of the Plaintiff's Complaint showing that the defendant is indebted to the Plaintiff

3. Accordingly the Defendant fails to raise any defense in fact or law that would preclude judgment in favor of the Plaintiff

4. There is no genuine issue as to any material fact, and the plaintiff is entitled to judgment as matter of law

5. An affidavit in support of motion for summary judgment will be submitted prior to the hearing on the Plaintiff's Motions for Summary Judgment.

Then it requests for Final Judgment in their favor.

In the support of... they list several cases. I don't know the proper term of these listings.

The rest of the documents received were in my original post. I am not sure how to proceed. Do I respond before the hearing and how would I respond? Chase is not the original creditor if this has any bearing.

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It might help us to help you if you'd copy and answer the questions in the following link.

 

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

1. Who is the named plaintiff in the suit?

Midland Funding

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Pollack & Rosen

3. How much are you being sued for?

$7842.04

4. Who is the original creditor? (if not the Plaintiff)

Chase (previously Wamu before takeover)

5. How do you know you are being sued? (You were served, right?)

Was served by process server

6. How were you served? (Mail, In person, Notice on door)

In person

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

As far as I am aware

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

Florida, Lake County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Unknown at this time

11. What is the SOL on the debt? To find out:

5 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Answered summons, Put in a motion to dismiss. Had a hearing on motion to dismiss. Judge struck my answers and affirmative defenses, wanted it in my own words, gave me 20 days to comply. I sent in answer in my own words in that time frame. She denied motion to dismiss.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No. to the credit bureaus and original creditor, yes to the amount with the collection agency in my answer.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No. Never received anything prior to suit, requested in answer

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Already answered to the summons.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Complaint, CC statement, Bill of Sale with information redacted and signed by a Team Manager

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

====================================================

If you are inquiring about a the best way to sue someone, you need to answer the following questions (as much as possible):

1. Who are you suing?

2. How old is the debt?

3. If the person harrassing you about the debt is a collection agency, Is the debt being reported on your credit report?

4. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) This means you wrote or called Experian, Equifax and TransUnion.

5. Has the collection agency sent you a letter, called you on the phone? How did you learn about the collection?

6. What state are you in?

7. What kind of debt is this? (credit car, auto loan, student loan)

8. What kind of violations do you THINK the collection agency has committed? What section of the FDCPA do you think has been violated...

============================================

By answering these questions, you will really get more help. If other people have more suggestions for questions, let me know.

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No hearing date has been set yet.

 

Then it sounds like you have time to answer but I would get on it fast! Did they send an affidavit with the MSJ? It looks like they intend to send one. You can't respond until you get it. A meet and confer letter might be best or have your opposition state the MSJ is incomplete and improper as no affidavit was submitted.  Just thinking out loud.

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Then it sounds like you have time to answer but I would get on it fast! Did they send an affidavit with the MSJ? It looks like they intend to send one. You can't respond until you get it. A meet and confer letter might be best or have your opposition state the MSJ is incomplete and improper as no affidavit was submitted.  Just thinking out loud.

They sent an affidavit of account and an affidavit of sale of account by original creditor.

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They sent an affidavit of account and an affidavit of sale of account by original creditor.

 

Hard to give you advice on how to attack without seeing the affidavit. Thoughts:

 

Personal Knowledge is huge in a MSJ. If the affiant does not claim personal knowledge it cannot be assumed they have any.

 

Are any documents specifically referenced as exhibits in the affidavit? If not, and the just reference "the records", then the affidavit cannot be used to authenticate documents like the bill of sale or cc statements.

 

A redacted bill of sale that does not specify your account is proof that accounts were sold, not necessarily yours. If the affidavit states that your account was sold but does not have documentary evidence to support that statement, the statement is conclusory and has no foundation.

 

Beat those points home if they apply.

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Hard to give you advice on how to attack without seeing the affidavit. Thoughts:

 

Personal Knowledge is huge in a MSJ. If the affiant does not claim personal knowledge it cannot be assumed they have any.

 

Are any documents specifically referenced as exhibits in the affidavit? If not, and the just reference "the records", then the affidavit cannot be used to authenticate documents like the bill of sale or cc statements.

 

A redacted bill of sale that does not specify your account is proof that accounts were sold, not necessarily yours. If the affidavit states that your account was sold but does not have documentary evidence to support that statement, the statement is conclusory and has no foundation.

 

Beat those points home if they apply.

 

Affidavit of Account

 

Mycah Struck whose address is....St. Cloud MN certifies and says:

1. I am employed as a Legal Specialist and have access to pertinent account records for Midland Credit Management, Inc, servicer of this account on behalf of Plaintiff. I am a competent person over eighteen years of age, and make the statements herein based upon knowledge of those account records maintained on Plaintiff's behalf. Plaintiff is current owner of, and/or successor to, the obligation sued upon, and was assigned all rights, title and interest to the defendant's Chase Bank USA, N.A> account  # (MCM #) (thereinafter "the account"). I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on plaintiff's behalf.

2. MCM records show that the defendant(s) owe(s) a balance of $7842.04. Plaintiff or authorized agent of plaintiff may seek interest and a reasonable attorney's fee, if applicable.

3. The attorneys representing plaintiff were retained for the purpose of collecting the delinquent debt owed on the account set above.

 

Affidavit of Sale

 

State of New York, County of Nassau

 

Martin Lavergne being duly sworn, deposes and says:

 

I am over 18 and not a party to this action. I am an officer of JPMorgan Chase Bank, N.A. and am authorized by Chase Bank USA, N.A. to execute this affidavit. In my position, I am aware of the process of the sale and assignment of electronically stored business records.

 

On or about 12/6/2011, Chase Bank USA, N.A. sold a pool of charged-off accounts (the “accounts”) to Midland Funding , LLC. (“Buyer”) under a purchase and Sale Agreement and a Bill of Sale between Buyer and Chase Bank USA, N.A. As part of such sale, electronic records and other records on individual accounts included in the Accounts were transferred to Buyer. These records were kept in the ordinary course of business of Chase Bank USA, N.A.

 

I am not aware of any errors in the Accounts. The above statements are true to the best of my knowledge

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So essentially, nothing has been authenticated. They speak of records but don't specify a record and list it as an exhibit to authenticate it. That is the point I would hit the hardest.

 

Bill of sale would be hit just as hard. 

 

I would also go after the fact that, while the affiant may claim personal knowledge, she does not demonstrate personal knowledge by stating where and how the records are kept and generated. Also, while she may have knowledge of the JDB's records, she does not have knowledge of the OC's records. Without an affidavit from the OC authenticating the records that were supposedly sent to Midland, she cannot know of their accuracy prior to her getting them.

 

That would be my plan of attack.

 

Btw, does that St. Cloud affidavit have AFFRECORD and a bar code at the bottom?

 

I have a post somewhere on here that refers to the AG of MN going after that in a deposition.

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So essentially, nothing has been authenticated. They speak of records but don't specify a record and list it as an exhibit to authenticate it. That is the point I would hit the hardest.

 

Bill of sale would be hit just as hard. 

 

I would also go after the fact that, while the affiant may claim personal knowledge, she does not demonstrate personal knowledge by stating where and how the records are kept and generated. Also, while she may have knowledge of the JDB's records, she does not have knowledge of the OC's records. Without an affidavit from the OC authenticating the records that were supposedly sent to Midland, she cannot know of their accuracy prior to her getting them.

 

That would be my plan of attack.

 

Btw, does that St. Cloud affidavit have AFFRECORD and a bar code at the bottom?

 

I have a post somewhere on here that refers to the AG of MN going after that in a deposition.

 

Yes it does.

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Yes it does.

How would I proceed in an answer? Do I use that info and place parts of it or use the ..vs.. ? Is there a certain format I should be using? I have never been thru any of this before. Am I suppose to go line by line on their summary to answer, do I just do like a letter format or do I answer in the order of the documents I received?

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You have to admit or deny each paragraph of their complaint. Your paragraph one (assuming your name and address are stated (if correct)) you admit your name and address are correct. If paragraph two states you owe them money, deny.

 

Your header will look just like theirs except it will be titled "ANSWER".

 

Court name

 

Plaintiff

    vs.                      CASE #

You

 

Defendant's Answer

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You have to admit or deny each paragraph of their complaint. Your paragraph one (assuming your name and address are stated (if correct)) you admit your name and address are correct. If paragraph two states you owe them money, deny.

 

Your header will look just like theirs except it will be titled "ANSWER".

 

Court name

 

Plaintiff

    vs.                      CASE #

You

 

Defendant's Answer

I am past that part. I am on Plaintiff's motion for summary judgment and memorandum of law in support thereof.  Post # 12 is the motion I received and post 19 are the affidavits along with some CC statements that were included. I have been told on this site I need to respond before they set a hearing date. They have not set one yet. I do not know how to respond to this. I have read all the areas that have been suggested to me and they all make sense I just don't know how I go about putting it all together as a response. 

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