donim74

Midland Funding vs. Donim74

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I think that new law changes don't count if you were already in litigation before the law changed.  That's like playing a game and since your losing, you change the rules in the middle so you win.  Most states it is not allowed, but maybe our resident Texas boys will have a say in that.

 

If you could find the specific rule, what it was before, you could appeal.  Most states mirror federal evidence rule 803 on hearsay, google your rules, and then search out hearsay documents.  If you objected to them, you may still have a winnable case if it is worth it to you to pursue. 

Without knowing exactly what what said, and what you objected to it is hard to tell.

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I can find new civil rules that went into effect august 31, but I cannot find any changes to the rules of evidence.  http://gov.bexar.org/JP/Docs/FinalApprovalOfJusticeCourtCases_effectiveSeptember1_2013.pdf

I looked too, I cant find anything about the change in rules of evidence either... I wish I knew what he was talking about, I am in major need of this information.

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Sorry it did not go well for you but you must make time to study to win your case. 

 

Your going up against an attorney who does this for a living.

 

Did you make an affidavit denying this was your debt or state that the account was paid in full and in good standing or at least say the amount being sued for is wrong.

 

When they submit an affidavit you must submit an affidavit denying or disputing all the allegations contained in the plaintiffs affidavit, unless you have proof of payment.

 

Its a pain to get things notarized but it must be done to cast doubt on plaintiffs facts and present your new facts to the court.

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I don't know how to answer the questions here.  However, I objected to EVERYTHING presented by the plaintiff as heresay, and I was overruled on all of it.  I don't know exactly what changed, but from the first overrule, I knew I had ZERO defense in this case.  I was baffled on how this was all allowed as true.

 

No I didn't make an affidavit. I was trying to figure this all out.  I received their discovery just shy of a week before the trial.  I was scrambling trying to figure out how to do my objections.  Up until the trial I thought I was fine.

 

I objected to:

Bill of sale (this did not reference my account or my name)

 

Affidavit of sale - (This did not reference my account or my name)

 

Midland submitted a data sheet that had my name phone number address acct etc.  This was printed by Midland. I objected this as heresay as well.  this had no info from Chase on it, and it was a piece of paper from Midland that said we got this from a data file.

 

Statements from Chase - I objected as heresay.  They didn't prove that I owed anything to Midland, and without a witness from Chase to authenticate these statements, they were heresay.

 

Affidavit from Midland Employee - I objected to multiple statements the employee made, as they claimed to know How Midland keeps and maintains records.  My objections to this were, the Midland employee would have no way to know the accuracy of the records as they are not an employee of Chase and have no knowledge of Chase's record keeping procedures, or protections in place to ensure the accuracy.  I tried to attack procedures. (I didn't realize i had to submit an affidavit to deny, until the day of.)

 

I did the best I could with the time I had, and take full responsibility of course.  I'm not stating that I received any wrong info here...you guys have been extremely knowledgeable and I learned alot.  I'm not sure I have an answer as to how all of the heresay was allowed to be admitted, bur from the first overrule I received, it took every bit of wind out of my sails, and quite frankly I didn't know what to think or do at that point.

 

The attorney and Judge both basically said a month ago, this was the right way to attack Midland's case.  I honestly don't fully understand what happened in this case.  I posted to the best of my understanding to help ensure nobody else gets blindsided by this.  Hopefully this can help someone in the future.

 

Maybe a change in the exception?

 

If this is all accurate and true, this is only going to make companies like Midland, go even more nuts on the lawsuits....if this junk "evidence" is allowed.  I only posted my failure to hopefully help someone else.

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You should have received this stuff 14 days before trial according to this rule.

(10) Business Records Accompanied by Affidavit.

(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.

As far as the other stuff, maybe they are using the JDB s affidavit from their "custodian of records" as a subscribing witness, and therefore do not need a live witness? I don't know. Here is your rule on that.

RULE 903. SUBSCRIBING WITNESS' TESTIMONY UNNECESSARY

The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

but that to me would seem to prejudice the defendant big time, where is the rule you have the right to cross examine the witness. I don't know. Maybe you should get a transcript of the proceedings, you might have an appealable case.

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donin74 be proud of yourself you did your best and went toe to toe against a lawyer and a judge that's about all you can do.

To me it looks like you did all the things right you just got some bad rulings.

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^^ Agreed. You gave it your best. The variable in everything we discuss on this forum is the judge. We can help you interpret the law and choose strategies for trial but at the end of the day the judge makes all decisions. Appeals are the only thing that keeps them in check and very few pro se's are prepared to go through that and they know it.

 

xhitwallx

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@donim74

 

As others have stated, you did your best.  There's no way of knowing why the judge wasn't convinced. 

 

But you've learned some facts and information that you never knew before.  Hopefully, you'll never be sued again, but if you are, you're now better prepared.

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@donim74 Thank You for posting your results.   It sounds to me like you did a stand up job.  I am considering going this route as well, your information will be valuable to others.   I am considering chapter7  but if possible Id rather not.  If I fight it would feel good to win. Otherwise, I would still qualify from what I have seen in means testing.   Chapter 7 will wipe the slate clean.  You have to go through quite a process and pay a lawyer to go through it.  But, it sounds like you can tell all the creditors to talk to your lawyer.      If you have other debts and potential lawsuits that may arise from other JDBs you may consider that route as well.    I feel pretty good about it.   I am way over worrying about my credit score.   I think of it like this:    the Banks got their bail out from the taxpayers.    But then they sold our accounts to JDB, and probably financed that.  So they make even more money off it.  You deserve some relief too.   Dont just let them levy your bank accounts if you are in a bad position.  Take care of yourself and family.  Cheers!       

 

 

 

Maybe it's something here in 901 or 902

 

http://www.courts.state.tx.us/rules/tre/tre-all-010107.htm#rule901

 

 

The Judge did mentioned something in the 900's.

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