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Being sued by Midland Funding llc in MO


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1. Sued by Midland Funding via Joseph Andrew Terry of Gamache & Myers, P.C., St Louis, Mo

2.Served in person by process server

3.Complaint filed 4-16-13, 13th Judicial Circuit Court, Boone County, Missouri

4.O.C. GE Money Bank

5.Claims:

Count 1. Suit on Contract

1.  All times pertinent therein, Plaintiff was at all times relevant herein a  A LIMITED LIABILITY COMPANY, duly organized and existing under law.

2.  Plaintiff is the holder of a valid assignment of an account which originated with GE MONEY BANK with an account number ending in *************.

3.  Defendants is/are resident of BOONE COUNTY, Missouri.

4.  GE MONEY BANK and Defendant entered into a contract, whereby GE MONEY BANK extended credit pursuant to the terms and conditions of a credit agreement (hereinafter referred to as "Agreement") and Defendant, in exchange for the use of the credit extended, agreed to pay GE MONEY BANK for all amounts due resulting from the authorized use pursuant to the Agreement, including any finance charges and any other charges due under the terms of the agreement.

5.  GE MONEY BANK fully abided by the terms and conditions as set forth in said Agreement.

6.  Defendant has not made all payments to GE MONEY BANK pursuant to the Agreement.

7.  GE MONEY BANK sent monthly statements to the Defendant.

8.  Defendant breached the Agreement by failing to pay the amount owed.

9.  As a direct and proximate result of the Defendants breach of the Agreement, GE MONEY BANK has sustained damages in the sum of $1,934.98.

10.  GE MONEY BANK has fully performed, pursuant to the terms of the Agreement or its performance has excused due to Defendant's breach.

11.  GE MONEY BANK, and subsequently, Plaintiff, have made demand for payment of the outstanding sum of $1,934.98, but Defendant has/have failed and refused to pay.  Plaintiff seeks interest from December 31, 2012, which is the date of demand or subsequent to the date when demand for payment was made.

 

Wherefore, Plaintiff, MIDLAND FUNDING LLC prays for judgement in Count 1 against Defendant, in a sum of $1934.98 plus interest and for all costs expended herein and for any other and further releif this Court deems just and proper.

 

Count II Money had and received

Comes now, Plaintiff blah blah blah alternative cause of action follows:

1.  Plaintiff restates and re alleges each and every paragraph of Count I as if fully set forth herein.

2.  Defendant received and used (or authorized use of) the credit knowing that GE MONEY BANK expected to be repaid for all monies advanced, together with interest thereon.  With each use of the credit GE MONEY BANK paid money on Defendants behalf to the merchant with whom the credit was used.  Defendant accepted said funds for the purchase of goods, wares, merchandise or services and has/have been unjustly enriched by failing to repay such sums.

3.  Plaintiff is the assignee of the Issuer's right to be repaid by Defendant for such money had and received, and it is entitled to recover from Defendant the sum of $1934.98, together with interest as provided by law from December 31, 2012, all costs expended herein and for any other and further releif this Court deems just and proper.

 

Count III Account Stated

Comes now, Plaintiff, and for its alternative blah blah blah as follows:

1.  Plaintiff restates and re alleges each and every paragraph of Counts I and Count II as if fully set forth herein

2.  Defendant and GE MONEY BANK had previous financial transactions related to the Agreement issued to Defendant by GE MONEY BANK, at Defendants insistence and request.

3.  Pursuant to said transactions, GE MONEY BANK sent Defendant statements of account, to which Defendant did not object.

4.  Pursuant to the terms and conditions sent to Defendant in the Agreement, and governing its use, the Defendant made an unconditional promise to pay the amount due with the use of said card.

5.  The balance agreed to by the parties is $1934.98.

6.  The Defendant has failed to keep his promise to pay said balance, despited demant for the same having been made.

7.  Plaintiff is the assignee of GE MONEY BANK to be repaid by Defendant on the account, and it is entitled to recover from Defendand the sum of $1934.98, that being the balance due through December 31, 2012.

 

Wherefore, Plaintiff, Midland Funding llc prays for judgement in Count III against the Defendant in a sum of $1934.98, together with interest as provided by law from December 31, 2012, all costs expended herein and for any other and further releif this Court deems just and proper.

 

6.  Answered complaint in time and filed a motion to strike their affidavit as well as my own notarized statement in support of pending motions and of finding MIDLAND FUNDING LLC is a vexatious litigator and violates the ABA model rules of professional conduct

 

here is their affidavit:

Melissa Haag, whose business address is 16 Mcleland Road Suite 101, St. Cloud, MN 56303, certifies and says:

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

2.  MCM's records show that the defendants owed a balance of $1934.98; and that interest is due from 2012-12-31 accruing at a rate of 9.00000% as provided by law, amounting to $1.91, making a total due and owing of 1936.98.

 

I certify under penalty of perjury that the foregoing statements are true and correct

1-16-2013

 

signed: Melissa Haag

notarized by: Thenda Bermea

 

here is my motion to strike affidavit:

Motion to Strike the Affidavit of Melissa Haag

Comes now, Defendant and respectfully states the following:

1.  Plaintiff has submitted into evidence an affidavit claiming that the affiant, Melissa Haag, has personal knowledge of business records related to the aforementioned debt.  Affidavit of Melissa Haag

2.  The affiant writing in AFFIDAVIT OF MELISSA HAAG does not explain how the business records came into her possession, only that to the best of her beleif they "represent" the actual records from the original creditor, GE MONEY BANK.

3.  Affiant of AFFIDAVIT OF MELISSA HAAG does not claim to have personal knowledge of how business records were kept at the original creditor.

4.  Affiant of AFFIDAVIT OF MELISSA HAAG does not claim to have personal knowledge of the sale or assignment of the debt from the original creditor to Midland Funding LLC.

 

Wherefore, the Defendant prays this Honorable Court that Plaintiff's AFFIDAVIT OF MELISSA HAAG be stricken from evidence in the above action.

 

I state under penalty of perjury that the foregoing is true and correct.

signed and notarized

 

certify that I mailed a copy to plaintiffs atty

 

Here is my AFFIDAVIT SUPPORTING PENDING MOTIONS AND IN SUPPORT OF A FINDING THAT MIDLAND FUNDING LLC IS A VEXACIOUS LITIGATOR AND THAT MIDLAND FUNDING LLC VIOLATES THE ABA MODEL RULES OF PROFESSIONAL CONDUCT

 

NOW COMES, __________________ and hereby swears and deposed based on personal knowledge, under oath, as follows:

 

1. Frederick J. Hanna and Associates ("Hanna") have been Georgia debt collection lawyers for Midland Funding LLC ("Midland")

2. In 2010 and 2011 James T. Freaney, Esq. ("Freaney") was/is an attorney for Hanna and for Midland.

3. In 2011, Freaney testified in Court, under oath, that Hanna files 8000 to 10000 lawsuits a month and receives up to 100 answers to those suits each day.

4. 2010 letterhead for Hanna listed 10 attorneys to properly review/evaluate cases, prepare complaints and litigate 96,000-120000 lawsuits a year.

5. Upon information and beleif it is ethically impossible for 10 attorneys to properly review/evaluate cases, prepare complaints, and litigate 96,000-120000 lawsuits a year.

6. Upon information and beleif, all Midland debt collection attorneys handle a similar volume of lawsuits.

7.  Upon information and beleif, for Midland to operate profitably, the debt collection attorneys for Midland must file a huge number of lawsuits and such a volume per se violates several precepts contained in the ABA Model Rules of Professional Conduct.

8.  Aside from generating hundreds of thousands of direct lawsuits, the conduct of Midland has flooded bankruptcy courts, federal and state courts concerning FDCPA claims, other collateral litigation and caused untold human suffering.

9.  Midland has filed lawsuits against wrong parties.

10. Midland has filed lawsuits that are time-barred.

11. Midland files multiple lawsuits against individuals when one lawsuit could have been filed.

12. Midland files lawsuits without adequate documentation supporting said lawsuits.

13. Midland uses illegal robo-signed affidavits in lawsuits it files.

14. Midland files lawsuits in the wrong jurisdictions.

15. Midland files serial litigation against individual defendants in different courts.

16. Midland is an adjudicated violator of the FDCPA.

17. Midland has settled a large number of FDCPA suits in favor of debtors.

18. Midland has argued that U.S.D.C. (Arizona) has no jurisdiction over Scott Huminski's/Midland litigaition and U.S. Court Judge Teilborg agreed.  In U.S.D.C.(Ohio) and in the Sixth Circuit, Midland represents that the Arizona federal courts have jurisdiction over the Huminsky/Midland litigation. Upon information and beleif, Midland should stop lying to the federal courts and get its story straight.

19. Upon information and beleif the aforementioned facts support a conclusion that Midland is a vexatious litigator and vexatious litigation filed by Midland is perpetrated on a massive scale throughout the United States.

dated and signed

sworn and subscribed

notarized

 

7. A hearing was set to hear my Motion to Strike Affidavit but I got confused and just happened to notice that the date was set 5/13 the friday before court on monday and thought I was responsible for sending notice to the Midland's atty so that day I filed for a continuance of the hearing in order to give proper notice.  After I filed for continuance I found to letter from the court notifing me of the hearing with cc:Plaintiffs atty. So, I showed up in court on monday and the judged ended up not ruling on my motion and instead set the trial date for 6/10.

 

8. I know the Motion to Strike was premature.  I can object to their Affidavit during trial. 

9. All they attached to the complaint was an Affidavit verifying im not on active duty, Affidavit of Melissa Haag, an MCM account statement.

10. I'm thinking about filing discovery but dont know if it is even necessary given that all they have is an dubious affidavit, and a account statement.  No contract or even an agreement with terms and conditions. No bill of sale. 

11. I disputed the debt the moment they sent me any mail about it and requested an FDCPA debt verification and they did send me some stuff but I dont know if it really validates anything.

 

Im not sure how to proceed at this point to prepare for the trial on 6/10. Kinda think if I study the rules of evidence and requirements for an account stated I could argue for a dismissal on lack of standing.

 

I have a list of cases that Midland has lost that have been brought by about every state's AG that I want the court to be aware of. How do I inform them? File a document? under what rule?

 

thank you for any advice or experience that you can share with me!

 

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I would read my rules very carefully first. If you don't do discovery, is there some sort of system for disclosure? It would benefit you to know what they are bringing to court. If you don't have any disclosure or discovery, they may come to court with all sorts of stuff for a prima facile case, and since you did not know they would do that, you would not have a well built defense filled with case law to back it up. Don't count on them not bringing anything to trial. These dirtbags play dirty, the fact that there will be a trial, and they know you will try to strike the affidavit, they will try and introduce more at trial. They will have a special copy just for you at trial.

Who knows what the judge would do....I mean you didn't ask for anything.

Read your rules and see if they are required to send you anything if you didn't ask for it.

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Slow down relax your all over the place,Scott Huminski and hannah forget about them.

You need to worry over your case,Suit on Contract, Money had and received, account stated.

CACH LLC v. Jon J. Askew study this and listen to the trail and read all the pdf files

http://www.courts.mo.gov/sup/index.nsf/9f4cd5a463e4c22386256ac4004a490f/05b1ab4a57ec67848625792f00750254?OpenDocument askew case

http://www.creditinfocenter.com/community/topic/292720-start-to-finish-winning-against-midland-funding-aka-jdb/ this is another case that was won

http://www.creditinfocenter.com/community/topic/319736-lvnv-questions-missouri-lawsuit/ see post#2

http://www.courts.mo.gov/page.jsp?id=676 Rules of Civil Procedure

http://www.courts.mo.gov/page.jsp?id=46 court rules

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An account stated is defined as

A statement between a creditor or the person to whom money is owed and a debtor (the person who owes) that a particular amount is owed to the seller as of a certain date. Often the account stated is a bill, invoice or a summary of invoices, signed by the customer or sent to the customer who pays part or all of it without protest. This is important when a frustrated businessman sues for "account stated" which sets both the debtor's liability and the exact amount the debtor must pay, which is less complicated than claiming a debt is due and payable. An account stated may carry a longer statute of limitations than some other forms of debt depending on the state.

Money had and received

1.An action of assumpsit will lie to recover money to which the plaintiff is entitled, and which in justice and equity, when no rule of policy or strict law prevents it, the defendant ought to refund to the plaintiff, and which he cannot with a good conscience retain, on a count for money had and received.

2. In general the action for money had and received lies only where money has been received by the defendant.

Suit on Contract

The contract is implied, not written. Plaintiff will say that your conduct can be interpreted as acquiescence to the terms and conditions of the cardholder agreement. Often they will try to say that because you used the card, you agreed to those terms,forming the contract. Contracts can be written, implied, or oral. Credit cards are usually implied. Missouri recognizes use and acquiescence.

See Citibank v. Wilson

http://caselaw.findlaw.com/mo-court-of-appeals/1416441.html

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I should probably do discovery then, so I know what they are going to throw at me.  I do see that maybe I have been spinning my wheels a little. Hope I havent hurt my case with anything Ive done so far?! I just dont want to get rolled.

 

There is another case like mine being heard a few days before I go to court and the defendant has an atty.  So, Im going to sit in on that.  I will def study those links, racecar, thanks.  I have been reading and reading trying to be prepared.  

 

I feel like Im on another planet talking to aliens when Im in court though.  At the hearing on the Motion to Strike that I filed, in which, I had also filed a Motion to Continue, I triied to explain to the judge that I had been confused when I filed the motion to continue and that if the plaintiffs counsel was present that I would like to proceed with the hearing.  The judge just stared at me then said to the Plaintiff's rental atty, "is 30 min sufficient".  Then the plaintiff's rental atty went out in the hall and asked me if I intend to settle and I said, "no, I dont think they have a case. Im disputing it." and he said "O.K. your all set for today." I thought the trial for the hearing was going to be heard so I went back in and waited and waited and waited finally the session is over and the judge had is bailiff see what I was there for.  We went to the clerk's office to figure out what the judge had done and there was nothing, so he said to just keep an eye on case net.

 

 I showed up for my return 5/17 and the plaintiff had a different atty collecting consent and default judgements.  He triied to continue for 60 days but the judge informed him that it had already been set for trial 6/10.

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Ok, I have been reading and reading and reading!  I am hoping that my initial actions so far have not hurt my case!?

 

First, I filed my answer, the usual mix of "Defendant doesnt have sufficient information to form a beleif as to the truth of the averment" and "since Defendant has denied all previous allegations this allegation is improper." and a laundry list of affirmative defenses. 

 

At the time I filed my answer I also filed my Motion to Strike their Affidavit, which, I know now was premature and woefully deficient, I didn't cite any specific case law.  Is it too late to file a "revised" motion? What would the procedure for that be? Could I just file a new Motion to Strike or would I file a revised motion labeled as such?  Or should I just have a revised one ready for trial and use it when I object to them submitting their Affidavit? I would rather have it filed with the court ahead of time since, so far, it seems that nobody hears me when I speak in court.

 

My original motion has got it right, but is vague and weak, not mentioning key case law or the fact that the affiant does not testify as to the mode of preparation of the OC's records. 

 

I then made my own counter affidavit "in support of pending motions and in support of a finding that Midland Funding LLC is a vexacious litigator and that Midland Funding violates the ABA Model Rules of Professional Conduct."  In which I mentioned some of the dirty deeds that Midland has been found guilty of in the courts and filed it with the court and sent a copy to Midland.  None of it specific to my case, but informative, probably useless in this action though, and probably revealing of how out of my element I am with this stuff.

 

The judge has not ruled on my Motion to Strike Affidavit. Trial is set.  I have just put together my "First set of Admissions directed to the Plaintiff" which Im going to sit on until monday in case I find out something new and want to revise them.  I put them together, as Coltfan suggests, so that I can paint them into a corner when I follow up with my request for production of documents. They have not sent me anything yet. So, Im assuming they are going to try for an MSJ at trial but they will have gotten my request for admissions by then so that wont fly.

 

Guess Im going to go read some more now.

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Well, yesterday after working on answering their discovery requests I got a letter in the mail from Midland's Attorneys at Gamache & Myers, P.C. stating, "COMES NOW Plaintiff, and hereby dismisses the within cause of action without predjudice, at Plaintiff's costs."  They got nothing but lost time and money for the $20.00 they spent to "buy" the assignment.   

 

What are my next steps here? 

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Yeah, definately need to mow the lawn.  Monsoon season up in here!  Gonna keep studying too (Credit Repair). 

 

Lessons learned this round: 

 

1. The JDBs, the courts, the judge, and other Counsel in the room all know that JDBs just want default judgements, because they really have a tough time proving that they have standing to sue or proving a valid chain of assignment. 

    

     a.  This means they have to provide admissable evidence. 

    

     b.  Their "evidence" will usually be an affidavit created by one of their own employees stating that they reviewed the records

          of the account and that they are correct and then try to get this hearsay "evidence" in under the business records  

          exception 490.680...or that is how they did it before CACH LLC vs Askew(in Missouri)...maybe now they dont bother and

          just dismiss w/o predjudice?  They will probably also draw up a "billing statement" and maybe a bill of sale.   

    

     c.  to meet the requirements of 490.680  "the custodian or other qualified witness testifies to [the record's] identity and mode

          of preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and

          if in the opinion of the court, the sources of information, method and time of preparation were such as to justify its

          admission."

     

     d.  A custodian/legal specialist/affiant or whatever of the JDB is not a qualified witness to authenticate the documents of the

          OC.  To prove standing they have to have a witness from the OC that can testify to the mode of preparation of the records

          of the account in question.

 

2.  Even if they can prove these things they probably wont bother because the time spent making their case cuts into all the

     profits they could be making collecting default judgements.

 

3.  So, when you get served by a JDB.  Go to court.  Learn a few dance steps:  Answer, Discovery, Motions, ect..  Do the dance

     as best you can and they will most likely go away:)

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Looks like you picked up quite a bit of info but keep studying just in case. Congrats on your win!!!!

CACH LLC v. Jon J. Askew

http://www.courts.mo.gov/sup/index.nsf/9f4cd5a463e4c22386256ac4004a490f/05b1ab4a57ec67848625792f00750254?OpenDocument

Listen to the oral argument several times

keep reading those pdf files

 

 

 

 

 

 

 

 

 

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