Midland Funding represented by Weltman Michigan - OC Chase

[bmc100]

Hi All,

 

My wife was served yesterday with a summons and complaint from Weltman for Midland Funding. Midland in this case is the 2nd JDB to own the account. Hilco Receivables was first in line.

 

They attached the bills of sale from Chase to Hilco to Midland to the complaint. The sale from Chase to Hilco took place in 2009. They attached a Chase statement to the complaint that was dated in 2011. They blacked out the account number. The question I always pose is Why would Chase generate an account statement 2 years after the sale to Hilco? There is no financial benefit for them to do so.

 

Next, they did not state a cause of action. Their premise is that the terms of the account were broken and they are demanding payment in full. They did not attach the terms and conditions to the complaint, nor did they attach an affidavit from a Midland employee either. 

 

Right now, they are most likely hoping for a default. 

[Spikey]

With your help, your wife defeated Hilco if memory serves, correct? It's doubtful that Midland has any more evidence than Hilco did.

[shellieh98]

My advice would be to go up at the top of this forum and read your own thread of how to win I'm MI. (just playing with ya)

Is the date on the statement actually part of that statement 2 years after they sold it? Or could that be the date when Hiclo printed it out the first time around? At any rate, I think you have got this covered.

[bmc100]

The date at the top of the Chase statement is 01/11/2011. The bill of sale is dated in 2009, which is the Bill of Sale from CHASE to Hilco. 

 

I am starting to feel much better after surgery. Also, the summons states the complaint was served by first class mail. Well, the process server taped the summons to the front door. It is too bad I was laying down yesterday morning when the dogs started barking. I would have beat the living S*** out of the process server. 

[BV80]

@bmc100

 

What's shown on the Chase statement which is dated 01/11/2011?  First, I'm assuming it shows your wife's name and current address?  Was this the charge-off statement, or does it show any interest or fees added to the balance?

[bmc100]

This could not have been the charge off statement. Why would Chase print a CO statement almost 2 years after they sold the account? 

 

The print the charge off statement at the time they charge-off the account. 

 

The statement shows my wife's maiden last name, current address and a balance that is due. The account number is blacked out and no purchases or payments were showing in the transaction detail section.

[BV80]

@bmc100

 

I'm thinking about FDCPA violations.  If the statement indicated that it was the charge-off statement or showed any fees added to the account, it would just be added proof that the account could not have been part of a portfolio sold to Midland in 2009.

 

Does the amount on the statement correspond with the amount in the complaint?

 

As it is, I think you have a possible violation of 1692e(10):

 

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

 

Based upon that cc statement, Midland is going to have to prove that the account was, in fact, sold to them in 2009. which I don't know how they could do considering the date on the statement.  Or they may claim they submitted the wrong bill of sale.

 

Absent a bona fide error, Midland may have set themselves up for a counterclaim.

[bmc100]

I am going to have my wife file a Motion for a More Definitive Statement - MCR 2.115(A(1). For those who are wondering what I mean, please look at this caselaw

 

Dacon v. Transue, 490 N.W.2d 369; 441 Mich 315 (1992) - Look at sections 329 and 330 - The sentence starts off....This rule is designed to avoid two opposite, but equivalent evils.

 

Allegation 2 in their complaint reads - By use of the account, the defendant became bound by the terms of the agreement. The existence of this debt is established in the exhibit attached hereto as exhibit A.

 

Allegation 3 - The Plaintiff has exercised its rights pursuant to the terms of said agreement to accelerate payment of the entire balance due and owing by defendant to the plaintiff. 

 

Use of the account as we know could mean breach of contract or account stated, but they never specifically identified which cause of action they are referring to. 

[bmc100]

I had my wife file the motion. Now, lets see what happens.

[bmc100]

@bmc100

 

What's shown on the Chase statement which is dated 01/11/2011?  First, I'm assuming it shows your wife's name and current address?  Was this the charge-off statement, or does it show any interest or fees added to the balance?

 

 

@bmc100

 

What's shown on the Chase statement which is dated 01/11/2011?  First, I'm assuming it shows your wife's name and current address?  Was this the charge-off statement, or does it show any interest or fees added to the balance?

 

It states, your account is scheduled to be charged off shortly....etc. The data file to be sent to Midland was on 1/6, 2011. The Chase statement also states, This account is currently closed and no longer available for use. If there is a balance remaining on the account, please continue making payments by the due date. The due date on the statement is 1/8/2011. 

 

Why would Chase Charge off the account when prior to the due date, when the statement states to continue making payments by the due date?

[bmc100]

Midland did not attach the terms and conditions of the account, nor did they attach any proof that the account was charged off by 1/6/2011. Given they are the 2nd JDB in the Chain, I doubt they want to put too much money into this. 

[bmc100]

Of course WWR sent my wife an offer to a consent judgment. I typed up a response to their offer basically stating that having an incomplete set of assignment docs, an affidavit from a known robo-signer where courts have found him to provide robo-tesimony and one alleged account statement is not enough to prove their claims.

 

Further, as of now I have not received a response to my motion. As a result, I will assume that you are going to allow the court to grant the motion. Under MCR 2.115(A), you will have 14 days to amend your complaint or the court will dismiss your case.

 

Last, save yourself the time and effort and go find someone who will not answer the summons and complaint or will agree to a judgment. Given that Midland is the 2nd of 3rd JDB in the chain of assignment, Midland might have paid $50 mac for the alleged account.

 

After this case is finished, I will file suit for FDCPA violations against MCM and WWR. Now MCM is trying to tack on post-chargeoff interest to the account balance per the consent judgment offer without evidence that the assignors allowed MCM to do so.  

[Spikey]

It'll be interesting to see if they respond. This is probably a last ditch effort to see if your wife will cave. It's not like most JDB's are set up to actually fight against shrewd defendants.

[bmc100]

In my wifes last case against Stellar Recovery, the attorney or their paralegal sent an offer to consent and I responded in a similiar way. They filed a MSJ and took it to trial only to dismiss in front of the judge right before the trial was to begin.

 

I do not know why MCM would push a lawsuit when they are the 2nd or 3rd assignee in the chain of ownership. It is a futile attempt and their attorneys are suckers for pursuing these cases.

 

At least I gave them the ability to amend and correct their mistakes. Now, if they do amend and do not fix the mistakes, I will file a quick MSJ against them.

[BTO429]

Midland is the 2nd of three assignees? if this is true then they do not own the debt according to this statement. This statement would elude to the fact Midland sold the debt to someone else, they are not the real party in interest and have no business filing a fraudulent suit.

 

If Midland owns the debt now, they are the third owner, they need to prove the chain of custody, you know this. Evidence with an account number that has been blacked out is either fraudulent or just plain moot. It proves one of two things, it is an attempt by Midland to manufacture evidence that favors them, or it proves absolutely nothing. I would challenge it and not have it thrown out quite yet. Make them prove where they got it and who originated it. If they claim they got it from the first debt buyer it is hearsay. If they claim it is their own document then they admit they generated it with no actual proof and it constitutes fraud, I would hope the atty would not be that stupid.

 

Even if it came from chase and there is an affidavit in support that it is authentic, with out the person the signed the affidavit being in court there is no way Midland can attest to it in any way. "your honor I cannot cross examine a piece of paper, I motion to strike it as hear say." If they try to beat around the bush as to where it came from verbally ask for a motion to compel from the court. If this is a fraudulent piece of paper some one has committed fraud and they need to be charged for it. I would delve deep into finding out who generated the paper.

 

If they atty had any reason to believe the paper was not authentic he can be found guilty of lack of candor before a tribunal for even offering it as evidence.

 

American Bar Association

Rule 3.3

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

( A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

© The duties stated in paragraphs (a) and ( continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

[bmc100]

BTO - The account allegedly went from Chase to Hilco/Equitable to Midland.

 

There are two bills of sale. The first bill of sale from Chase to Hilco, there was a date stated where the parties agreed to the purchase, then there is another date where a data file was to be sent from Chase to Hilco "Closing Date", which is 2 years later. In all of the Chase Forward Flow Agreements I have seen the "Closing Date" is never more than a month or two. The purchase agreement has redacted information in it and there is an affidavit from Martin Lavergne - who is known to provide robo-testimony for Chase. All he stated is that Chase sold off a pool of charged off accounts to Hilco.

 

On the 2nd page of the purchase agreement, someone crossed out Hilco and wrote in Equitable by attaching the agreement for Equitable Assent to buy Hilco.

 

Then a month after that there is another bill of sale between Hilco/Equitable to Midland. There is just a generic affidavit from an employee of Hilco/Equitable stating a pool of accounts were sold on XYZ date. Information is redacted from this bill of sale as well.

The lone Chase statement attached to the complaint states that the account was closed, but not charged off. It was a December 2010 statement and the bill of sale was dated in early January 2011. Also, the account number was blacked out on the statement with the exception of the last 4 numbers. There is a series of numbers that extends beyond those 4 numbers.

[bmc100]

There should be an internal purchase agreement from Hilco to Equitable for Equitable to sell a pool of accounts to Midland, which does not exist.

[BTO429]

Do these bills of sale specifically mention your wife's account? if not they can't prove they own the debt. I would definitely bring to the courts attention that there is something possibly fraudulent abut Chase waiting two years to send

 

BTO - The account allegedly went from Chase to Hilco/Equitable to Midland.

 

There are two bills of sale. The first bill of sale from Chase to Hilco, there was a date stated where the parties agreed to the purchase, then there is another date where a data file was to be sent from Chase to Hilco "Closing Date", which is 2 years later. In all of the Chase Forward Flow Agreements I have seen the "Closing Date" is never more than a month or two. The purchase agreement has redacted information in it and there is an affidavit from Martin Lavergne - who is known to provide robo-testimony for Chase. All he stated is that Chase sold off a pool of charged off accounts to Hilco. I would look into this two year period, it should not take two years for Chase to send the data file. There is something fishy here maybe even fraudulent. How do we even know if that data file came from chase.

 

On the 2nd page of the purchase agreement, someone crossed out Hilco and wrote in Equitable by attaching the agreement for Equitable Assent to buy Hilco. This crossing out a name and putting another name is moot. There needs to be a writing where Equitable bought Hilco and those debts were transferred. You can't just cross out someones name and put yours and make it legal. If that was the case I could cross out your name on your car registration, put my name then claim your car is now mine. Motion to strike as plain moot

 

Then a month after that there is another bill of sale between Hilco/Equitable to Midland. There is just a generic affidavit from an employee of Hilco/Equitable stating a pool of accounts were sold on XYZ date. Information is redacted from this bill of sale as well. Motion to strike it it is moot and holds no bearing on the case, it proves absolutely nothing, except a pool of debts were sold. It does not prove your wife's debt was contained in that pool. Motion to strike the affidavit also because it is not a part of Midland's business records. I have some case law some where that state you cannot take another person business records, put them in a file and then call them your business records. If the affiant is not in court to attest to the affidavit then it is hearsay, "your honor I cannot cross examine a piece of paper."

The lone Chase statement attached to the complaint states that the account was closed, but not charged off. It was a December 2010 statement and the bill of sale was dated in early January 2011. Also, the account number was blacked out on the statement with the exception of the last 4 numbers. There is a series of numbers that extends beyond those 4 numbers. Motion to strike it because it has been tampered with, is not the original, and there is no supporting evidence to back up what they think it proves.

After you get all this striken from the records make a verbal motion to dismiss with prejudice and tell the court you would like to submit your bill for having to fight a frivolous suit, have your bill and order for the judge to sign ready to go so if the judge agrees you can hand it him. It scares the hell out of a jdb attorney when you write your own orders and bills, and impresses the judge and save him time.  Do not over exaggerate the amount it cost you in time and lost wages and filing fees if any. 

 

After the Plaintiff has failed to state a claim for which relief can be granted, and being heard before the Honorable Court of ______________, in and for the State of ___________ on this ____ day of _______, 20___

by Honorable Judge ____________, it is hereby ordered and adjudicated that the case before this Honorable Court be dismissed ___ with prejudice, __ without prejudice, and the defendant, _____________, be awarded the sum of ______ for costs incurred in defending this case.

[ArtVandelay]

Check McDonald v. Asset Acceptance.

 

The Michigan Courts are with you dealing with post charged off interest which is a good possibility in your situation. Midland and Asset Acceptance are both owned by Encore.

[bmc100]

BTO - I was looking at the bill of sale from Chase and said to myself "They must have altered the document". I can go get examples of other bill of sales and a forward flow agreement that Chase entered into with other JDBs. I cannot find another bill of sale from Chase to Hilco.

[bmc100]

I pulled my wife's credit report. Chase did not charge off the account until 10/2011, though the bill of sale states that the data file was transmitted on 01/06/2011. 

[BV80]

@bmc100

 

Is Midland reporting on your CR?  If so, what are they reporting as the "date opened"?

[bmc100]

BV, I just had it open about 15 minutes ago. I believe they started reporting around 10/2011.

[bmc100]

Equitable or Hilco is not reporting at all.

[bmc100]

Update: My wife finally told me what was going on with this case last night. She decided to negotiate with them to pay a reduced amount. This would be the 5th time in the last 3 years she has been sued and she did not want to go back in front of this judge, as well as taking time to go back into court.

 

Details: They were suing for $1,900 roughly, she is going to pay $1,150 over a 6 month time frame.

 

Of course, I was ticked off. Not only is she paying a company that has not proven that they own the debt, but now she is putting herself in a position of another JDB potentially coming in to assert claims against her. I told her to wait and proceed with the suit to create even better barginning power if she did not want to follow through with the case. If anything else, make them prove they own your account, do not take their word for it.

 

I am at my witts end with her and it is only a matter of time before she gets sued again. There are 3 other JDBs reporting on her CR, with the largest being $2,300. I am done helping her and filing for divorce in the near future. She is horrible with money and budgeting. She almost took me down financially. Prior to marraige I had $0 credit card debt and ample liquidity. I paid off $40,000 in debt that she put in my name. I am done!!