JadeMolly

Midland Funding in Colorado

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I received a summons and complaint from Farrell & Seldin representing Midland Funding for a Chase account. I filed my answer, showed up on the summons date but the Plaintiff did not show. Can anyone tell me where to find any information on why the Plaintiff is not required to show?

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Did you tell the judge you were ready and the case should move forward.

If you did not show up you would have had a default judgment against you.

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No. I asked him to dismiss the case as they didn't show up and he said they didn't have to and told me it would be set for trial. I don't know where to look to find more info about why the Plaintiff would be excused on the initial appearance.

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shellieh98

She is our Colorado expert i bet she will pop in here soon she hates junk debt buyers.

Judges seem to favor the plaintiff's in these cases.

Study the rules of civil procedure and rules of the court.

Be ready for the next hearing,

I'm sure the plaintiff thought you would not show and they would win by default.

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Thanks. I will be looking at the Civil procedure and Local rules but I'm still at a loss as to where to find why the Plaintiff would not have to show up for initial hearing. In my research everything shows the plaintiff has to show up or grounds for dismissal unless you filed a counterclaim and had the Plaintiff served then it could go in your favor. I have found nothing stating that the Plaintiff does not have to show up.

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Unfortunately that is how it works in too many of these courts. The plaintiff doesn't show up and the judge grants a continuance. If you don't show up they get a default. Like Racecar said @shellieh98 is very helpful when it comes to lawsuits in your state.

 

Answer these questions and it will help others help you. 

 

1. Who is the named plaintiff in the suit? 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) 

3. How much are you being sued for? 

4. Who is the original creditor? (if not the Plaintiff) 

5. How do you know you are being sued? (You were served, right?) 

6. How were you served? (Mail, In person, Notice on door) 

7. Was the service legal as required by your state? 

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? 

9. What state and county do you live in? 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 

11. What is the SOL on the debt? 

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) 

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. 

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

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If it was the court date on the summons, you only had to appear if you didn't file an answer. It was to file an appearance only, they brought the suit, so their appearance is already on record. So the judge was correct in his ruling. Answer the questions Art posted. Then we will go from there. Did the judge set it for trial? When?

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Named Plaintiff: Midland Funding

OC: Chase

Served summons and Complaint properly

Correspondence: I don't recall having any communication in regards to this before Summons

Colorado

Sol: 6 years

Status: Served Summons and Complaint, filed answer, set for trial no trial date yet

Dispute with Credit Bureau: No

Debt validation: Requested validation after service of Summons Law Firm received it and filed the same day they received my request.

Complaint:

1. Info and belief Defendant *** resides at ***. Venue is proper in County, as the Defendant is located there and contract was executed in County.

2. Amount is in jurisdiction.

3. claimed amount $4400 + attorney fees, proper cost, and any other items allowable by statute, OC Chase.

4. claim arises from failure to make payment on account obtained by Defendant pursuant to an agreement or a statement for sums due was presented to defendant, there was an agreement by defendant that account is correct and agreed upon amount is due from defendant.

5. Defendant is in Default in accordance with terms for payment or have failed to pay account. Plaintiff is entitled to damages as a result of any breach of agreement, or the amount based on account stated.

6. Upon info and belief of Plaintiff, Defendant not in military.

7. Plaintiff does not demand jury trial.

 

Filed answer with denial to all claims except address/ military status

Counterclaims filed with answer as well as affirmative defenses

Received optional info sheet did not fill out

 They sent nothing with the Summons and Complaint other than an answer for Civil Procedure Sheet and optional info sheet

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I still don't understand local procedure on how Plaintiffs appearance is waived on initial summons date regardless of if they brought the suit. There is no statute excusing them and I'm still looking into Civil procedure at whatever level to find any info stating one way or the other? I've never seen a court like this where it's excused and when does local procedure trump federal procedure?

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The summons was to get an answer from you.  They filed a suit, most people don't know how to file an answer, so the court allows that person to show up in court and answer the charges in person.  If the person denies the charges, the judge will usually tell them to get a lawyer, and they enter an denial.  If you filied the answer, you didn't need to show up either, the court would have seen your filed your answer (appearance) and then put the matter up to be set for trial.

Now if you have any more things scheduled, they need to have someone appear, or motion to appear by phone.

 

What were your counter claims?

 

Colorado rules are a little different than most states.  In civil county court they do not do discovery like other states.  Some lawyers will try to send you discovery, and hope you answer, but they need permission from the judge to ask for discovery.  Instead they do disclosure.  The other side is required to send you all the evidence they have against you as if you had asked for it.  If they don't do it in a timely matter, it can be excluded from trial.  They are also not allowed to supplement without good cause.  So once they send you their disclosure packet, they cannot come back and send you more stuff unless they ask the court.

 

How far away is the lawyer from you?  If they are any distance at all, they will motion to appear by telephone.  It is important that when this happens you oppose it within 5 days.  I have a motion for that done, and you can use it if and when that time comes.

About the only thing to do while you await the court to set trial is study the rules of civil procedure, and rules of evidence.  They can be found on lexis nexis, that is the easiest format to use. (google them)

As soon as the matter is set for trial, you will want to send them your form 9 disclosure.  If you have nothing to disclose, you need to send it anyway and just state "defendant has no documents, defendant has no witnesses except for the purpose of impeachment.  You send it to them CMRRR.  This will limit the time they have to send you theirs.  You want to get it as early as possible so you will have time to come up with a defense.

 

You filied a counter claim, so in your disclosure you will need to include all evidence you have that supports your claim.  Because like them if you don't, then you won't be able to use it at trial.

 

One more thing.  We are different than most states also in that they may try to subpoena bank records.  If you get a notice from your bank that they are doing this it is important you file an opposition with the court.  They have to ask the judge permission for that.  They are an officer of the court, and in other type cases they would be allowed to do this, so banks just follow the subpoena. The judge in civil matters county court has to approve it for them, if you object.  Don't let them do it.  I didn't know this when it happened to me.

 

Oh and in answer to your question When does local procedure trump federal procedure?  ALL THE TIME.  We abide by the local court rules.  Federal has nothing to do with it.  even when citing case law--we need to find law from Colorado, and if there isn't any we can use federal, but there is not as much weight given to it.  Same goes for other states law.

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It seems from other cases that subpoenaing bank records is starting to become a more common tactic across the country. Why bother to prove their case when they can use our records instead.

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Here is the answer with counterclaims although I didn't pay the counter claim fee (didn't know it was separate and clerk didn't mention anything) so might be a moot point. The firm is 2 -2 1/2 hours away so possible phone appearance request. As far as bank records how would that even be helpful as it doesn't show any payment to the Plaintiff?

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As far as bank records how would that even be helpful as it doesn't show any payment to the Plaintiff?

 

They're interested in if you made payments to the OC (Original Creditor), that they can potentially line up with payments listed on statements they may have. Any flimsy excuse to try and tie the account to you. Along with showing that because you made payments that you agreed the balance. Which is an supposedly an element of an account stated claim.

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No it does not prove standing, you could say " yep I had an account with those same numbers, and wow I thought I owed way more than that". But I wouldn't. You want to create a reasonable doubt, it makes it harder for the judge to rule in their favor if there is a chance it's not yours. There have been many of cases here where the judge has ruled for the plaintiff on prima facie evidence that they own the account when the defendant admits to the account with the oc.

You are also creating trial able material issues that will help you beat a MSJ should they file one. They don't need a witness for that, only an affidavit , so we need to create as many triable issues as we can.

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Certified mail return receipt requested

Oh in addition anything you file with the court, you need to include a verification of service with it, it's just a paper verifying you mailed it to the plaintiff.

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No it does not prove standing, you could say " yep I had an account with those same numbers, and wow I thought I owed way more than that". But I wouldn't. You want to create a reasonable doubt, it makes it harder for the judge to rule in their favor if there is a chance it's not yours. There have been many of cases here where the judge has ruled for the plaintiff on prima facie evidence that they own the account when the defendant admits to the account with the oc.

You are also creating trial able material issues that will help you beat a MSJ should they file one. They don't need a witness for that, only an affidavit , so we need to create as many triable issues as we can.

 

What @shellieh98 said really sums it up. 

 

In a perfect world all you would need to do is make them prove they own the account, which they usually can't. Unfortunately way too many judges will just rule in their favor just because you had an account at one time with the OC. Even though it doesn't make legal sense these judges are more concerned about if you ever had the account. Not saying to lie, but just say as little as possible. 

 

When it comes to the ownership issue, which should always be the case, most of these JDBs and their attorneys are just bluffing. They only win two ways. One is by default and the other way is through legal procedure. Just understand that being right legally and winning are two different things. You can be 100% right legally, but still lose the legal procedure battle. That is why it is so important to make sure you know what you are doing and as @shellieh98 said above establishing "reasonable doubt" can't hurt. 

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The verification request and answer were both sent requesting signatures so I'm good there and anything I file with the courts I will cc the Plaintiff. So at this point I hope the answer was sufficient and just wait for the courts to mail me a trial date which is another thing that is odd but not used to civil procedure I'm more familiar with criminal procedure. ( for present work purposes, not a career criminal yet.) :)

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Proof of of an account stated or your own admission that the account is yours doesn't prove the money is owed to the JDB.  They can have all the proof in the world that you opened the account and made payments on it, but they still have to prove that they own that account.

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Got a trial date in April, the also filed a motion for telephone hearing I'm working on an objection right now, also they sent a disclosure when do I have to file mine?

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You should send your disclosure now. If you have nothing to disclose, just put that and send it. Now you need to take their disclosure and tear it apart. This is all the evidence they have against you they plan on using. Get that opposition to telephone test. Done, you only have 5 days to oppose it.

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