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Midland Mailed Me Old OC Statement… Now What?


win2011
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Hello,

I've been in an ongoing dispute with Midland Funding over a charge off B of A credit card. The account came back verified by two of the three CRAs and after several DV letters and filing a complaint with my state’s attorney general and the BBB they finally responded with a letter outlining the inception of the debt and when it was charged off  and photocopy of the last statement B of A issued.

 

Prior to all of this Midland sued me, regarding this account, but the suit was dismissed with prejudice. I have sent copies of the dismissal to the CRAs but as I stated earlier only had success with getting it removed with one. Midland argues that even though the suit was dismissed it was dismissed with prejudice meaning they still have the right to continue collection activity.

 

What should my next move be? Should I consider this sufficient debt validation?

 

Any help with this would be greatly appreciated.

 

 

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No it is when it is dismissed without prejudiced that they could still continue collection activity. Send midland a copy of the order that states with prejudice, and that you want their entries removed or you may find a consumer attorney to help you bring suit, then do it.

I would think this would be misrepresenting the status of the debt which is an FDCPA violation. They couldn't prove in court they had a right to the debt, so they shouldn't be reporting it.

Now if it was the original creditor reporting, that's another story, they can report for the full 7 1/2 years.

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No it is when it is dismissed without prejudiced that they could still continue collection activity. Send midland a copy of the order that states with prejudice, and that you want their entries removed or you may find a consumer attorney to help you bring suit, then do it.

I would think this would be misrepresenting the status of the debt which is an FDCPA violation. They couldn't prove in court they had a right to the debt, so they shouldn't be reporting it.

Now if it was the original creditor reporting, that's another story, they can report for the full 7 1/2 years.

First I wanted to thank the both of you for taking the time to help me out. It is greatly appreciated.

 

I thought they "could" continue collection activity since it was dismissed with prejudiced. Why is it the opposite true?

 

But at the same time I was also thinking, if they couldn't prove their case in court why can they still attempt to collect.

 

The original creditor is still reporting and that's schedule to fall off early 2015.

 

 

@win2011

 

In the order, did the judge include a comment as to why it was dismissed with prejudice?

It wasn't the judge. The lawyer for Midland requested the dismissal the day I went to court. I never got to appear. The clerk called my name and told me the case was dismissed. I think I called there bluff by wanting to go to court and not settling and they blinked due to the fact that they did not have enough to prove I owed them the debt. That's why I don't understand why Midland is still asserting there right to collect.

 

Thank you again both of you for replying to my questions

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Are you sure they dismissed WITH prejudice? Most will dismiss without prejudice, the judge is the one who usually does it with. Without prejudice means they admit no wrong doing, and if they want can file against you again if they are still within the SOL. If the OC is due to fall off in 2015, the JDB should fall off state the same time.

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Are you sure they dismissed WITH prejudice? Most will dismiss without prejudice, the judge is the one who usually does it with. Without prejudice means they admit no wrong doing, and if they want can file against you again if they are still within the SOL. If the OC is due to fall off in 2015, the JDB should fall off state the same time.

I'm sorry yes you are right... it is "without prejudice". Is there anything I can do?

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I'm sorry yes you are right... it is "without prejudice". Is there anything I can do?

 

Send Midland a cease and desist demand. If they insist on continuing collection efforts, locate and FDCPA consumer lawyer in your area and file suit. The rest will fall into place.

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Thank you everyone for your help. I figured my next was to have to file a lawsuit against them. Besides hiring a lawyer, can you point me in the right direction if I wanted to file the suit pro per? Thank you again.

 

First thing is to determine what you would sue them for, and how likely you are to prevail.

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Check these links and then click on your court district. Find the ones that are suing JDBs like Midland, Encore, etc. Then find the attorneys listed under the plaintiffs. These are the attorneys that have FDCPA experience. Its not a simple process, because you need to find an attorney that is willing to fight for you. Take all information you have including letters, court documents  and any recorded phone messages. These attorneys will tell you real fast if you have a claim to file. 

 

http://dockets.justia.com/search?state=california&noscat=13&nos=480

 

 

http://dockets.justia.com/search?state=california&noscat=13&nos=890

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Check these links and then click on your court district. Find the ones that are suing JDBs like Midland, Encore, etc. Then find the attorneys listed under the plaintiffs. These are the attorneys that have FDCPA experience. Its not a simple process, because you need to find an attorney that is willing to fight for you. Take all information you have including letters, court documents  and any recorded phone messages. These attorneys will tell you real fast if you have a claim to file. 

 

http://dockets.justia.com/search?state=california&noscat=13&nos=480

 

 

http://dockets.justia.com/search?state=california&noscat=13&nos=890

 

 

Unless you are an experienced pro se litigant, you would be advised to find counsel to represent you. 

Thank you for all of the help. I'll look into getting an attorney. One last question though... Is a single credit card statement satisfactory debt validation?

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Can they produce the contract that allows them to charge you interest? 

 

Assuming they can is the rate legal by contract and/or state law?

 

Did they start charging interest from the time they "purchased" the debt or did they calculate interest from the time of the OC's charge off?

 

Did they file suit knowing they didn't have the evidence to win the case? Did they file suit knowing they would never have the evidence needed to win the case?

 

These are just a few questions that an experienced FDCPA attorney will ask. If you decide to look into this I strongly suggest you consult with an attorney. The attorneys that fight these cases are real litigators from large firms. They are several steps above the attorney/debt collectors that you go up against in local/state court. You can win Pro Se, but very few are ready to handle Federal Court. Since you live in CA the attorney might be able to get them on state violations also.

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Can they produce the contract that allows them to charge you interest? 

 

Assuming they can is the rate legal by contract and/or state law?

 

Did they start charging interest from the time they "purchased" the debt or did they calculate interest from the time of the OC's charge off?

 

Did they file suit knowing they didn't have the evidence to win the case? Did they file suit knowing they would never have the evidence needed to win the case?

 

These are just a few questions that an experienced FDCPA attorney will ask. If you decide to look into this I strongly suggest you consult with an attorney. The attorneys that fight these cases are real litigators from large firms. They are several steps above the attorney/debt collectors that you go up against in local/state court. You can win Pro Se, but very few are ready to handle Federal Court. Since you live in CA the attorney might be able to get them on state violations also.

I don’t think they can produce a contract. In all the correspondence I’ve ever received from them they never included it. During the lawsuit the only evidence they presented was the same copy of the last billing statement, a copy of the contract, and contract/letter form Bank of America stating the transference of the debt.

 

I believe the interest is from the time they purchased the debt but I can’t be completely sure.

 

I don’t think they even planned on having a judge hear the case. I think there goal was to obtain a quick judgment because attempted to file a request for default before my time to answer expired, which was rejected of course. Then I show up to my CMS and the attorney they sent was trying to get me to settle but I refused. I then show up to trial and find the case was dismissed.

 

Sounds good. Thank you again for the help.

 

Some Calif consumer lawyers:

 

www.attorneysforconsumers.com

 

www.westcoastlitigation.com

Thank you very much.

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Just make sure the attorneys you speak with have FDCPA Experience. You might have to meet with a few before finding the right one. Ask the attorneys how many FDCPA claims they have filed and how many they have won. If they think you have a strong case most will take the case without charging you up front. Some even will cover the filing cost. 

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Just make sure the attorneys you speak with have FDCPA Experience. You might have to meet with a few before finding the right one. Ask the attorneys how many FDCPA claims they have filed and how many they have won. If they think you have a strong case most will take the case without charging you up front. Some even will cover the filing cost. 

That is excellent information. Thank you very much for all of your help.

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