Axe215!!!

Midland didn't show up...now they've filed a Motion to Set Aside Dismissal and Reinstate

Recommended Posts

Yes, you read the subject line, and its true...read on:

 

First of all, you should all know that one of the Forum members has been helping me throughout this case, much kudos goes to him! Some of the below are excerpts from messages I have sent him. All of this actually started back last January, but no suit was filed by Midland until June. So far I have weathered their MSJ (denied!!!), the prelim trial, and the trial itself.

 

The trial date was December 3rd at 2PM, I of course arrived early and went into the courtroom at 1:55.

 

There were some criminal cases still ongoing, and those did not finish until 2:10 or so. In the meantime, I watched the door for the JDB lawyer, since I had not seen him yet. At 2:00 a lady entered the courtroom carrying a large tote bag with what looked like files in it, so I thought, "OK here we go..." 

 

At 2:10 she left the room, and at 2:15 they called my case. I approached the bench...by myself...no one else was in the courtroom, save for the judge, bailiff, and courtroom workers. The clerk stepped outside to announce in the hallway, and the reporter got on the intercom and paged the JDB counsel to the courtroom. "Mr. Defendant, I am going to let it be shown that you are here and that Plaintiff is not. I am going to dismiss this case WITH PREJUDICE."

 

Absolutely stunned, I looked at him in surprise...I WON!!! I offered a tentative smile, and said, "But your Honor, I took the time to get all dressed up..." he actually smiled back, and said, "Well, it looks like both you and I have some extra time now, doesn't it? I have dismissed this with prejudice; this case is finished in this court's eyes."

 

But, now the paranoid part of me takes over...can they file a motion to set aside judgement? For all I know, his car broke down on the way to the courthouse (it is a cross-state drive for him). Maybe I am still stunned by this whole thing...and what about going after them for violating FDCPA regulations? It seems to me that they knew their goose was cooked when they did not show up in court today. I am sure I could find a lawyer around here to take the case if there are grounds....

 

And now, today in the mail, it appears my paranoia has been substantiated:

 

 I received a notice of hearing for December 20th. The plaintiff has filed a motion to set aside dismissal and reinstate. They are saying that 'due to a clerical mistake and inadvertence by Plaintiff's attorney, Plaintiff's attorney failed to properly calendar the adjourned trial date and failed to appear for the trial scheduled on December 3, 2013 at 2:00.' and 'Pursuant to MCR 2.612 ( C ), Plaintiff moves this court to relieve Plaintiff from the Order of Dismissal on the grounds of mistake, inadvertence, and excusable neglect'. Sigh. I am going to go to the hearing of course and intend on turning it into an impromptu MSJ, since they never have produced the bill of sale.

 

Any words of wisdom?

  • Like 1
Link to post
Share on other sites

Whatever your next move is do whatever it takes so they don't get away with this. They usually don't show up because they have no evidence. The second reason is they don't have a clue what is going on which sounds like what they are saying. Sorry I don't know anything about Michigan Law, but we do have a lot of successful MI posters on here. Put Michigan in the title to help attract them. Since its late Saturday you may not get any help until Monday. 

 

If they want to come after you again make sure they have to pay a new filing fee. That way if/when you win they will be SOL, and I don't mean statute of limitations.

 

This would also be a good time to speak with a consumer attorney with FDCPA experience. Most of them offer a free consultation. Take every letter, every court document and any voice mails if you have them. Read this article which talks about a MI case with Asset Acceptance. They are owned by the same company that owns Midland. This could be just the beginning of uncovering possible FDCPA violations for you.

 

http://www.foxbusiness.com/personal-finance/2013/10/16/how-much-can-collectors-legally-boost-charged-off-debts/

 

 

Good Luck!

  • Like 2
Link to post
Share on other sites

AXE,

 

I am not from Michigan and don't know your rules of civil procedure, but you should check them.  I do know from experiemce courts can give a wide berth on these little mis hap from Attorneys even Collection Attorneys.  I am sure you will need to file  Oppoition or the court will likely grant it, even with your oppostion they could get this granted.

 

Is it the same judge that made the ruling that will hear the Motion.  If so you will want to inculde all of the screw ups in your oppostion.  Obviously if there is any real good case law you want that also.

 

I helped a poster a year or so ago, where they filed a cross complaint the the collection attorney failed to answer.  The poster file for default and the CA file Motion to Vacate/Set Aside.  They won the motion, but had to pay a $750 dollar penatly.  I have redacted the Oppostion document I helped the poster create.  It is a fun read espiecally now that I have changed the names see below:

 

 

  • Like 2
Link to post
Share on other sites

Whatever your next move is do whatever it takes so they don't get away with this. They usually don't show up because they have no evidence. The second reason is they don't have a clue what is going on which sounds like what they are saying. Sorry I don't know anything about Michigan Law, but we do have a lot of successful MI posters on here. Put Michigan in the title to help attract them. Since its late Saturday you may not get any help until Monday. 

 

If they want to come after you again make sure they have to pay a new filing fee. That way if/when you win they will be SOL, and I don't mean statute of limitations.

 

This would also be a good time to speak with a consumer attorney with FDCPA experience. Most of them offer a free consultation. Take every letter, every court document and any voice mails if you have them. Read this article which talks about a MI case with Asset Acceptance. They are owned by the same company that owns Midland. This could be just the beginning of uncovering possible FDCPA violations for you.

 

http://www.foxbusiness.com/personal-finance/2013/10/16/how-much-can-collectors-legally-boost-charged-off-debts/

 

 

Good Luck!

Thanx Art...truth be known, if I would not have procrastinated after the default judgement was entered in my favor and filed suit against them within a couple of days, their motion to set aside probably would never have been filed. I am in contact with a consumer lawyer, but first I need to defeat their motion to set aside. So far, an attorney directly representing the firm shown in the suit has only been to one of the court proceedings, so your statement about them not having a clue what is going on is correct.  

Link to post
Share on other sites

AXE,

 

I am not from Michigan and don't know your rules of civil procedure, but you should check them.  I do know from experiemce courts can give a wide berth on these little mis hap from Attorneys even Collection Attorneys.  I am sure you will need to file  Oppoition or the court will likely grant it, even with your oppostion they could get this granted.

 

Is it the same judge that made the ruling that will hear the Motion.  If so you will want to inculde all of the screw ups in your oppostion.  Obviously if there is any real good case law you want that also.

 

I helped a poster a year or so ago, where they filed a cross complaint the the collection attorney failed to answer.  The poster file for default and the CA file Motion to Vacate/Set Aside.  They won the motion, but had to pay a $750 dollar penatly.  I have redacted the Oppostion document I helped the poster create.  It is a fun read espiecally now that I have changed the names see below:

 

 

attachicon.gifRedacted Opposition to Motion to Vacate.docx

Skip, that document is fascinating...and very humorous...and about to be plagiarized, LOL...and yes, it is the same judge that dismissed the case earlier this month.

Link to post
Share on other sites

I also don't know your state's rules, but, did they ever serve you with anything bearing the trial date on it that notified YOU of the trial like a trial notice etc.?

Thanx HotWheels, I will be going thru the documentation this afternoon and will keep an eye out for that. It seems to me that all of the documentation associated with dates has been handled directly thru the court.

Link to post
Share on other sites

You need to file your opposition to their motion and claim that it would prejudice you to reopen a case that has already been decided.

Semper Fi, BTO429! My daughter is currently at Lejeune undergoing her Advanced Combat Training!

 

Regarding your post, can you bust that down into plainer English, or point me in the direction of a couple of threads that refer to it? I am going to begin wordsmithing the document that skippy1960 attached in his reply.

Link to post
Share on other sites

BTO is saying to file an opposition to their motion. You need to define MCR 2.612©(1)(a) and how the Mich Court of appeals or Supreme Court have ruled on it. On google scholar there are only 2 or 3 cases that reference this rule. Each one though states that the court would have had made the error, not a party forgetting to show up with proper notice. 

  • Like 4
Link to post
Share on other sites

Semper Fi, I wish your daughter well with her career in my beloved Marine Corps.

 

You need to state that their claim cannot survive a motion to dismiss based on the fact that if they would have shown up on the scheduled court date they could have presented their issues then.

The only way to challenge a judgment once it is entered in the court record is to prove they were not served process or that the court lacked subject matter jurisdiction, or fraud was involved. Plaintiffs motion does neither to prove lack of process, lack of subject matter jurisdiction, or fraud. Plaintiffs motion also fails to prove, Mistake, inadvertence, surprise, or excusable neglect and should be dismissed.

  • Like 1
Link to post
Share on other sites

Whatever your next move is do whatever it takes so they don't get away with this. They usually don't show up because they have no evidence. The second reason is they don't have a clue what is going on which sounds like what they are saying. Sorry I don't know anything about Michigan Law, but we do have a lot of successful MI posters on here. Put Michigan in the title to help attract them. Since its late Saturday you may not get any help until Monday. 

 

If they want to come after you again make sure they have to pay a new filing fee. That way if/when you win they will be SOL, and I don't mean statute of limitations.

 

This would also be a good time to speak with a consumer attorney with FDCPA experience. Most of them offer a free consultation. Take every letter, every court document and any voice mails if you have them. Read this article which talks about a MI case with Asset Acceptance. They are owned by the same company that owns Midland. This could be just the beginning of uncovering possible FDCPA violations for you.

 

http://www.foxbusiness.com/personal-finance/2013/10/16/how-much-can-collectors-legally-boost-charged-off-debts/

 

 

Good Luck!

Where do I find the legal amount a junk  debt collector can charge interest in California . I read the above article but could not find where to get this information.

Link to post
Share on other sites

Where do I find the legal amount a junk  debt collector can charge interest in California . I read the above article but could not find where to get this information.

I your state laws pertaining to interest . or the contract they claim they are suing over. You tell the court that the only way to determine what interest, fees, and penalties they can claim is governed by the contract. I mean the contract between you and the original creditor. You also need to ask for the sales contract, it will state what assignment rights the seller of the debt gave them. If the debt has been sold more than once you need the sales contracts from all the sales to prove they have any rights of assignment.

  • Like 2
Link to post
Share on other sites

Look at: Limbach v. Oakland Bd. of Road Com'rs 226 Mich App 389, 573 N.W.2d 336 (1997)

 

Under Analysis:

 

MCR 2.612(A)(1)©, was not "designed to relieve counsel of ill-advised or careless decisions".  Lark v. Detroit Edison Co, 99 Mich. App. 280, 283, 297 N.W.2d 653 (1980).

 

or 

 

Altman v. Nelson, 495 NW2d 826, 197 Mich. App. 467 (1992) - A party may be relieved from final judgment, order or proceeding on the basis of mistake. MCR 2.612©(1)(a). This mistake maybe a mistake of the trial court. They referenced a case.

  • Like 3
Link to post
Share on other sites

Look at: Limbach v. Oakland Bd. of Road Com'rs 226 Mich App 389, 573 N.W.2d 336 (1997)

 

Under Analysis:

 

MCR 2.612(A)(1)©, was not "designed to relieve counsel of ill-advised or careless decisions".  Lark v. Detroit Edison Co, 99 Mich. App. 280, 283, 297 N.W.2d 653 (1980).

 

or 

 

Altman v. Nelson, 495 NW2d 826, 197 Mich. App. 467 (1992) - A party may be relieved from final judgment, order or proceeding on the basis of mistake. MCR 2.612©(1)(a). This mistake maybe a mistake of the trial court. They referenced a case.

Thanx BMC100; I found the Limbach case but was getting frustrated trying to find some others.

Link to post
Share on other sites

http://scholar.google.com/scholar_case?case=12851019971980029152&hl=en&as_sdt=205&sciodt=206

 

From the above case:

 

Plaintiffs, without citation to any authority, claim in their brief on appeal that they "should not be punished for their counsels' failure to timely response to Defendants[`] Motion for Summary Disposition." However, an attorney's negligence is ordinarily imputed to the client. Amco Builders & Developers, Inc v Team Ace Joint Venture, 469 Mich 90, 96; 666 NW2d 623 (2003).

Link to post
Share on other sites

File a motion to dismiss, if they claim that the attorney did not perform the duty he was hired to do then their claim is with the attorney for not performing his duty to a client, not with you because they lost the case due to their attorneys incompetence. .

  • Like 1
Link to post
Share on other sites

@Axe215!!!

 

Are they asking for relief under 2.612©(1)(f)?  If so,

 

"To obtain relief from a judgment pursuant to MCR2.612©(1)(f), three requirements must be met: (1)  the reason for setting aside the judgment may not fall under subsections (a)-(e), absent a showing that injustice would result were the judgment to stand; (2) the substantial rights of the opposing party must not be detrimentally affected; and (3)  extraordinary circumstances must exist that mandate setting aside the judgment in order to achieve justice.  Heugel v Heugel, 237 Mich App 471, 478-479; 603 NW2d 121 (1999).  “Generally, relief is granted under subsection f only when the judgment was obtained by the improper conduct of the party in whose favor it was rendered.” Id. at 479.

Link to post
Share on other sites

@Axe215!!!

 

Are they asking for relief under 2.612©(1)(f)?  If so,

 

"To obtain relief from a judgment pursuant to MCR2.612©(1)(f), three requirements must be met: (1)  the reason for setting aside the judgment may not fall under subsections (a)-(e), absent a showing that injustice would result were the judgment to stand; (2) the substantial rights of the opposing party must not be detrimentally affected; and (3)  extraordinary circumstances must exist that mandate setting aside the judgment in order to achieve justice.  Heugel v Heugel, 237 Mich App 471, 478-479; 603 NW2d 121 (1999).  “Generally, relief is granted under subsection f only when the judgment was obtained by the improper conduct of the party in whose favor it was rendered.” Id. at 479.

BV80, let me take this time to tell you "Thank you". Many were the nights when I sat at the computer drawing inspiration from your threads, along with several other posters.

 

No, they are not citing (f). They are citing (1)(a): Mistake, inadvertence, surprise, or neglect. 'Inadvertence' is flat-out mentioned in their motion, they are saying that 'Plaintiff's attorney failed to properly calendar the adjourned trial date'. Which is simply amazing; since he is the one that requested the adjournment in the first place.

Link to post
Share on other sites

OK gang, here is my opposition to their motion, I intend on filing it no later than Tuesday morning:

 

MEMORANDUM IN OPPOSITION TO PLAINTIFFS MOTION TO VACATE DEFAULT JUDGEMENT

 

1. Statement of Facts:

            Plaintiff filed his action on xxxxxxx and Defendant was properly served.  The action filed by the Plaintiff was related to a credit card account that Plaintiff alleges belonged to the Defendant and was procured by Plaintiff from Chase Bank.  The original trial date was set for xxxxxxx. At that proceeding, Plaintiff requested and received a new trial date of xxxxxxx in order to allow for discovery by both parties. On xxxxxxx the trial was held and Plaintiff failed to appear. A default judgement was entered against Plaintiff, and on xxxxxxx Plaintiff filed a Motion to Set Aside Dismissal and Reinstate on the grounds of MCR 2.612©(1)(a), which states that ‘On motion and on just terms, the court may relieve a party or a legal representative of a party from a final judgement, order, or proceedings on the following grounds:

(a)     Mistake, inadvertence, surprise, or excusable neglect.

                                                              ARGUMENT
 

I.  Dismissal should be set aside under MCR 2.612©, because it was through mistake, inadvertence, surprise or excusable neglect.

Plaintiff’s motion cites “inadvertence” as the claim agent relating to MCR 2.612©.  Plaintiff does not supply a declaration as to why the inadvertence occurred other than the statement in Paragraph 4 that ‘Plaintiff’s attorney failed to properly calendar the adjourned trial date and failed to appear for the trial scheduled on December 3, 2013 at 2:00.’  A review by the court will find that Plaintiff’s attorney, XXXXXXX, originally requested the adjournment from the court on the original trial date of xxxxxxx and received the rescheduled date of xxxxxxx from this honorable court at the same time that the Defendant received it. It should be further noted that the original trial date of xxxxxxxx has been the only court date so far that one of Plaintiff’s attorneys named in the court documents have been present, while the Defendant in this case, representing himself  Pro Se, has not missed a single date during the court proceedings for this trial, up to and including the Civil Pre-Trial, a Motion for Summary Judgement, the original trial date of xxxxxxxx, and the rescheduled trial date of xxxxxxxx.

 The only way for Plaintiff to challenge a judgment once it is entered in the court record is to prove they were not served process or that the court lacked subject matter jurisdiction, fraud was involved, or matters beyond their control occurred such as a medical incident, traffic mishap, etc.. Plaintiffs motion does nothing to prove lack of process, lack of subject matter jurisdiction, fraud, or matters beyond their control. The intent of MCR 2.612© is to provide relief from errors by the court, improper service, or Acts of God, not a party forgetting to show up with proper notice (and especially if the party requested the new date in the first place). In Limbach v. Oakland Bd. of Road Com'rs 226 Mich App 389, 573 N.W.2d 336 (1997), the court ruled that MCR 2.612©(1)(a), was not "designed to relieve counsel of ill-advised or careless decisions".  Lark v. Detroit Edison Co, 99 Mich. App. 280, 283, 297 N.W.2d 653 (1980).

            Defendant reminds the court that Plaintiff, by their own admission, considers themselves “one of the nation’s biggest buyers of unpaid debt. Midland Funding LLC purchases accounts with an unpaid balance where consumers have gone at least 180 days without making a payment, or paid less than the minimum monthly payment.” (Quoted from: Midland Funding LLC home page website http://www.midlandcreditonline.com). Defendant raises this point in his opposition motion because it is well known that buyers of unpaid consumer debt, AKA “junk debt buyers” generally survive by taking “Default Judgments” from the consumers they file suit.  Any quick research will show that it is a generally accepted fact that junk debt buyers, thru their satellite law firms, file for default judgments in 90%-95% of the cases they bring, based on the defendant’s in those cases failing to answer the complaints on time.

         Furthermore, it is the Defendant’s supposition that this ‘inadvertence’ by Plaintiff occurred mainly because Plaintiff is stalling for time. Plaintiff admitted during discovery that several key documents have not been procured from the alleged original creditor and that Plaintiff  ‘has requested additional information and will supplement (these) response(s) upon receipt’.

Summary and Conclusion

            The court should see the poetic justice in that the Plaintiff whose monetary success is determined on a daily basis against the number of default judgments it receives, is here motioning the court to vacate the entry of default, against the Defendant.  Defendant believes this court should deny the Motion as it is not complete, it is missing a copy of the answer or other pleading pursuant to the Michigan Civil Procedure 2.612© it is being brought.  Plaintiffs motion fails to prove mistake, inadvertence, surprise, or excusable neglect and should be dismissed. Defendant feels that Plaintiff is merely stalling for time, and should have known the trial date, since Plaintiff was the entity that requested the new date in the first place.

           
  Respectfully submitted,

                                   

Dated:_____________, 2013 By_______________________

 

 

Link to post
Share on other sites

In the statement of facts, type it like this:

 

1. Plaintiff filed this action on XXXXX and Defendant was properly served.

 

2. The action filed.....

 

3.

 

4. 

 

5. 

 

6.

 

Double spaced, minimum 12pt font.

 

Your argument - Dismissal should not be set aside....not Dismissal should be set aside. 

Double spaced, minimum 12 pt font. 

  • Like 1
Link to post
Share on other sites

http://scholar.google.com/scholar_case?case=923409525760014532&q="MCR+2.612©(1)(a)"&hl=en&as_sdt=4,23&as_ylo=2009

 

 

 

 

MCR 2.612©(1)(a) governs motions for relief from judgment and provides that "[o]n motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding" on the basis of "[m]istake, inadvertence, surprise, or excusable neglect." "Mistake" for purposes of MCR 2.612©(1)(a), may be that of the trial court. Fisher v Belcher, 269 Mich App 247, 262; 713 NW2d 6 (2005), citing Altman v Nelson, 197 Mich App 467, 477; 495 NW2d 826 (1992). This Court has also held that relief from a judgment will generally only be granted in extraordinary circumstances and where the failure to grant the relief would result in a substantial injustice. Gillispie v Bd of Tenant Affairs of the Detroit Housing Comm, 145 Mich App 424, 427-428; 377 NW2d 864 (1985). In the end, the trial court "must balance the public interest in achieving finality in litigation versus the private interest of remedying an injustice." Mikedis v Perfection Heat Treating Co, 180 Mich App 189, 203; 446 NW2d 648 (1989).

  • Like 1
Link to post
Share on other sites

In Limbach v. Oakland Bd. of Road Com'rs 226 Mich App 389, 573 N.W.2d 336 (1997), the court ruled that MCR 2.612©(1)(a), was not "designed to relieve counsel of ill-advised or careless decisions"

 

Personally, I don't believe the above citation is applicable to your case.   Midland's attorney's alleged mistake was not based upon a careless decision.   The Limbach case had nothing to do with a mistake.

 

But if you're comfortable with it, that works.

 

@debtzapper provided some more good case law in posts #17 and #23 (highlighted).

Link to post
Share on other sites
Guest
This topic is now closed to further replies.