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Feel Like I'm Getting My A.. Kicked By Midland Funding Judge In New York..Help!!!


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Sorry if this posting is long but I'm new at this. I am being sued by Midland funding in New York (Nassau county) for an alleged Chase Bank debt of around $8000.

On 1/7/2013 Midland Funding LLC A/S/I/I To a Chase account vs. me in Nassau County District Court New York (I live in Suffolk County).

 

I was served by mail without any supporting documentation.

 

Complaint stated “The basis of the venue is: A defendant resides in the county of Nassau, The transaction took place in the county of Nassau”

 

I answered within the allotted 30 days, I was instructed by the clerk that this just requires a one line statement, so I wrote “General denial of complaint” which was filed with the court and sent certified to JDB attorneys.

 

Trial started  May 13th…(BTW, I sat there watching the Judge who was totally on the side of the JDB attorneys convince several  victims to settle and make an agreement to repay with high monthly payments).

 

The Judge questioned do you owe Chase Bank, I stated I’m  not aware of it.  The JDB attorney answered“ I have all of  these statements your honor.”

 

I asked for the information and the Judge instructed them to send it to me and postponed the trail.

 

They sent the usual inconsistent, random statements with  no identifying account number , Bill of sale between Chase and Midland etc.* The first statement in the stack was from “Washington Mutual then Chase statements.”

 

Then...I filed a Motion To Strike Affidavit of debt in support of plaintiff’s claim (I attached a copy) which was also certified and sent to the JDB attorneys.

 

Two days before trail JDB filled the following:

 

Affirmation in opposition

 

2.  This affirmation is  submitted  in  opposition to  Defendant's  motion  to  strike affidavit; said motion is returnable July 16, 2013. Plaintiff opposes the motion as it is inapplicable and improper.

 

3. In support of her motion, Defendant alleges   that "Plaintiff has submitted into evidence a Bill of Sale in support of the plaintiff's claims ..." and that "Plaintiff has submitted into evidence an Affidavit of Sale of Account in Support of Plaintiff's Claim ..." (Defendant's affidavit 2 &3).

 

4. However, no evidence has been submitted to either the Court or the Defendant in this action.  Plaintiff has not submitted any affidavits or documentation into evidence. In fact,  Plaintiff has not even received demands for discovery from the Defendant. Thus, there is no evidence or affidavit to strike; and Defendant's motion is inapplicable.

 

5. In an effort to initiate settlement discussions, on or about May 13, 2013 Plaintiff's counsel sent a letter to the Defendant with copies of the subject credit card account statements and proof of assignment of the debt.  A copy of Plaintiff's letter and accompanying documents are annexed hereto as Exhibit "A".  It must be noted that the proof of assignment also includes specific reference to Defendant and the account at issue.  'The letter and documents provided to the Defendant were not submitted as evidence in this action but rather were provided as a means of identifying the debt and the balance owed.

 

6 As no affidavits have been submitted into evidence herein, Defendant's motion to strike any affidavit is inapplicable.  Furthermore, the affidavits that the Defendant references are affidavits in support  of assignment of the debt, and they do  not bear on  the merits of the underlying claim. Unless and until Plaintiff seeks to introduce and submit evidence to the court.. an application to strike or deny the introduction of said evidence is unfounded and improper.

 

WHEREFORE,  it  is respectfully requested that  the  Court  issue  an Order  denying Defendant’s motion, and for such other and further relief as the Court deems just and proper. 

 

 

Mid July, I appeared in front of the Judge (Pro se annoyance showing up to court again and refusing to roll over and settle as expected).

The judge claimed that he did not read the motions and answers but can see statements with my name on it.  

 

 He asked if I had a Chase account, I stated that I’m not sure but I’m being sued by Midland funding and they have no right to sue then I referred to the exhibits (He did not let me finish).

 

The Judge responded that it is common for companies will buy debts in bulk also he saw a Washington Mutual statement but knows that they were bought by Chase because he had an account with them.

 

I tried to speak but he kept badgering me.

 

He asked the JDB attorney, how much does she owe, their attorney stated around $8000.  The Judges stated if you make payments around $600 monthly you will finish paying this very quickly.

 

I stated that midland funding has now right to sue me because they have no information showing that they have the right to collect a debt from me.

 

Finally he said he will postpone the case until the third week in August, so that I can review the information that Midland sent me but If he finds that IF I DO NOT FOLLOW PROPPER PROCEDURES, HE WILL RULE AGAINST ME AND IT WILL RUIN MY CREDIT, I WILL NOT BE ABLE TO BUY A HOME OR A CAR ETC.

 

 

I will not roll over for and settle as they expect by any means but I feel that it will be very difficult for me to get a fair trial because this judge seems a little biased and very familiar with the JDB attorney.  

He calls them by their first name since they spend their days at the court collecting default judgments by the truck load.

 

I have around three weeks until court again and would appreciate help on how to move forward with this case. I’ve read several procedures for New York (Nassau and eastern district) but I’m stuck! 

 

  1. Did I improperly file a motion to strike, since I did not officially file for D?iscovery?
  2. Can I argue for speaking Discovery when I requested the information that was sent to me during the first trial?
  3. Is it too late to request a trail in my county where I would get another Judge?

 

Thank you in advance for your help and responses.    .  

 

 

 

 

Motion to strike sample filing.docx

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It's hard to figure out what's going on procedurally here. You said there was a trial on May 13. Are you sure that wasn't some scheduling or status conference? Type out for us exactly what all future dates in this case, and their description by any court orders, are.

Their motion does seem to make sense to me. If they haven't submitted affidavits as part of a trial or motion proceeding, any motion to strike affidavits by you are of no consequence. It's only when they try and submit affidavits into evidence, to the judge directly, that it is timely for you to move to strike, or to object.

Don't get hung up or intimidated by the judge being familiar with opposing counsel. Yes, he views you as just another annoying pro se who is rambling incoherently about rules of evidence. If you are persistent enough, and articulate enough, you can still hope to persuade him at trial that you are on the correct side of the rules of evidence. Study this forum long enough and you will master the rules of evidence as applied to affidavits from JDBs.

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This is what I would do, especially if I found myself in a court that seems hostile and biased. 

 

Look online, or, if the plaintiff's complaint included a cardmember agreement, for an arbitration clause.  Typically they read like this: if either party elects arbitration, then neither party can litigate in court.  The clause will specify one or more arbitration forums, either AAA or JAMS.  If it's old, it may include NAF, but that won't matter because they don't do these cases anymore.  JAMS is the forum you would prefer.

 

Then, with a favorable, applicable arbitration clause, covering the OC's alleged account for the time period the account was open, I would file a motion to compel arbitration, and to stay the case pending arbitration.

 

JDBs don't like arb because of the costs.

 

There is an arbitration section on this site for more info.

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That is a good option. You can alos file a Motion in limine to strike the cc statements. They tried to bs the court with these at my trial. I would file mil to strike anything they sent you. Find some case law to support banning electronic statements. Find out how sonn before trial you have to get a motion in. Was this like a pre-trial conf or acual trial??Were you sworn in?

 

Without your whole case start to finish it's hard to help

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@taste1

 

When was your date of last payment?   Chase cards are governed by the laws of Delaware which has a 3 year SOL.  If your payment was more than 3 years ago, it's possible that you could claim the DE SOL.

 

Read the following case from the NY Court of Appeals:

 

http://scholar.google.com/scholar_case?case=8626368307996834885&q=%22Portfolio+Recovery+v.+King%22+AND+Delaware&hl=en&as_sdt=4,33

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That is a good option. You can alos file a Motion in limine to strike the cc statements. They tried to bs the court with these at my trial. I would file mil to strike anything they sent you. Find some case law to support banning electronic statements. Find out how sonn before trial you have to get a motion in. Was this like a pre-trial conf or acual trial??Were you sworn in?

 

Without your whole case start to finish it's hard to help

I was not sworn in but the three times that I appeared in court it was a scheduled trial but treated like a per-trail conference.

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@taste1

 

When was your date of last payment?   Chase cards are governed by the laws of Delaware which has a 3 year SOL.  If your payment was more than 3 years ago, it's possible that you could claim the DE SOL.

 

Read the following case from the NY Court of Appeals:

 

http://scholar.google.com/scholar_case?case=8626368307996834885&q=%22Portfolio+Recovery+v.+King%22+AND+Delaware&hl=en&as_sdt=4,33

The last date of documented payment was in April 2010.

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What do your rules of procedure state?  Are you in small claims court?  It kind of sounds like it because the court dates some to be coming up quick.  

 

Can you file a motion for Discovery?  

I am unable to find any rule related to JDB's

 

What do your rules of procedure state?  Are you in small claims court?  It kind of sounds like it because the court dates some to be coming up quick.  

 

Can you file a motion for Discovery?  

Yes small claims court. I am unable to find anything that supports JDB's opposition; http://www.nycourts.gov/rules/trialcourts/208.shtml#11.  Is it proper to file a Motion for Discovery and a Motion in Limine to strike the credit card statements at the same time?

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@taste1

 

There are no court rules specifically for JDB cases.   Court rules  apply to every case heard in that court.   If you're being sued in small claims, then whichever rules apply to small claims apply to your case.

Ok after reading the court rules it may be too late to file a motion for discovery after my initial motion for relief "Motion to Strike" but maybe a Motion in Limine would be more appropriate citing many of the forum members suggestions?  Also JDB has no proof of service for the "Affirmation In Opposition." Because I was not served by regular mail which is incorrect base on court rules below.   Should I cross move to also have their Opposition dismissed for improper service.

 

Court rules:

" After you have prepared the opposition papers, follow the procedure outlined below:

1. Copies of the opposition papers must be served on all other parties at least 2 days before the hearing date of the motion.

2. Opposition papers must be served by a person who is not a party to the action and is eighteen years of age or older.

 

After the opposition papers have been served, the person who served the papers must sign an Affidavit of Service which states how and when the papers were served. The Affidavit of Service must be signed in front of a notary."

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@taste1

 

Because I was not served by regular mail which is incorrect base on court rules below.

 

1.  You were NOT served by mail?  Where did the rules say you must be served by mail?  Exactly what section of the rules did you copy those sentences?

 

2.  When was the case filed with the court?   If it was filed after April, 2013, you have a statute of limitations defense.

 

 

In the plaintiff's opposition, they claimed your motion was improper because they haven't submitted evidence yet.   Just because they may have sent you some documents doesn't mean those documents have been offered to the court as evidence.   So, your motion to strike was premature.

 

Your rules are very different from mine.   In my state, we don't have to get the court's permission to conduct discovery.

 

Since I have no way of knowing your financial status, I'd suggest you contact NY Legal Aid to see if they can offer you some help.  If they can't, contact the NY Bar Association.  It should have a lawyer referral service.  Request the name of a consumer attorney in your area that specialized in debt collection defense.

 

In my state, if I contact the lawyer referral service, they'll provide me with a name of an attorney.  Since I got his name from that service, he'll give me a consultation at a reduced fee. 

 

This is a great way to get questions answered and find out about your court rules and procedures.  He can tell you what you can and can't do and give you some ideas on how to proceed. 

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