mmass

Midland Funding HSBC and Capital One

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I am being sued by Midland (assignee of HSBC). It appears that HSBC credit card units were purchased in 2012 by Capital One.

 

I am at the pre-trial conference phase. Do I raise the issue of account ownership now (standing)? Or am I better off seeing what Midland's lawyers have for documentation?

 

I called HSBC and was automatically transferred to Cap 1 based on my home phone #. I finally talked to a rep that confirmed that Cap 1 now owned the account but it has subsequently been sold to still another servicer. I have requested that info in writing in case I need it. The question is - when should I use it?

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What a chain of custody nightmare for Midland! They will have to clearly show each link in that chain.

I believe standing is something that can be brought up at any time. Please answer:

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?

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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1. Who is the named plaintiff in the suit?

-- Midland Funding LLC assignee of HSBC Nevada, N.A.

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

-- Lustig, Glaser and Wilson

3. How much are you being sued for?

-- $6389

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

-- HSBC Bank Nevada

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

-- Served with civil complaint

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

-- In person and mail

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

-- yes

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?

--Worcester County, Massachusetts

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

-- Not sure but it's within the Mass SOL

11. What is the SOL on the debt?

-- 6 yrs

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).

-- Suit served and answered. Received notice of pre-trial conference for Feb 12.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
-- no

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.
-- no

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?

-- I have answered initial complaint.

-- 1. The plaintiff is a duly organized corporation with address ----

--  Answered: Not Sure - I do not have knowledge of the Plaintiff's organization or usual place of business (treated as Deny in Mass)

-- 2. The Defendant is [me]

-- Answered: Agree

-- 3. The Defendant owes the Plaintiff the sum of $6389 for the unpaid balance due for money loaned by plaintiff's assignor on a credit card account

-- Answered: Not sure - I do not have any statement of account from Plaintiff or assignor that indicates the stated amount as an unpaid loan.

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

-- Attachments:
-- Attorney's statement that firm is duly authorized and has been provided with info from the books and records of Plaintiff... believed to have been calculated by totaling all charges, debits, etc.

-- Statement of damages (Mass Trial Court Form) showing total of $6389

-- Uniform Counsel Certification re: dispute resolution requirement

-- Conflict of Interest Disclosure

-- No other statements, contracts, exhibits with account numbers

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Sorry - Missed #8...

I received letters from attorney over the 2 months prior to their filing suit. When I received letter saying they decided to file, I sent an offer of settlement (approx. 10%) which they rejected.

They offered an Agreement for Judgment that I have not agreed to.

 

 

I am sure I have no account under the name of HSBC Nevada but I have had one HSBC account that is now the Cap 1 account.

 

I don't know if I can say that I traced an HSBC account to Cap 1 without admission of having an HSBC account (if this is the same one in the complaint). Since no account # is in the complaint, until I see what they have for a statement or other docs, I can't be sure of the account -- so I don't want to lead with a "you don't own the account" argument.

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On a positive note you are going up against Midland instead of Cap One. Cap One usually sues on accounts over 5K, so for some reason they didn't think you were worth the time. 

 

First round off #3 and the amount at the bottom to 6K. Anytime you post something on here remember to take out personal info and round off all numbers.

 

In many states the pretrial is just the courts way of trying to get people to settle. It is also the time to set a trial date if you want to fight. You will need to look up the rules of your local and state courts to determine your next steps. You should be fine as far as any past negotiations are concerned since most courts do not allow them to be used against you at trial. 

 

Do you know if Cap One purchased this account after it was already in default? Figure out the date of the last payment. The purchase by Cap One was sometime in Mid 2012. This will determine if Cap One is actually the OC.

 

Also you should only communicate with the plaintiff's attorneys in writing other than in court. Any letters should be mailed through the USPS using CMRR.

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Sorry - Missed #8...

I received letters from attorney over the 2 months prior to their filing suit. When I received letter saying they decided to file, I sent an offer of settlement (approx. 10%) which they rejected.

They offered an Agreement for Judgment that I have not agreed to.But of coarse they did. ;)

 

 

I am sure I have no account under the name of HSBC Nevada but I have had one HSBC account that is now the Cap 1 account.Good, they will need to prove you do.

 

I don't know if I can say that I traced an HSBC account to Cap 1 without admission of having an HSBC account (if this is the same one in the complaint). Since no account # is in the complaint, until I see what they have for a statement or other docs, I can't be sure of the account -- so I don't want to lead with a "you don't own the account" argument. Sure you do.  Make them prove they own it, until otherwise proven, they don't own it.

 

So they haven't even send you a statement from the OC as evidence? 

First thing is to read your rules of civil procedure for your state, and find your discovery rules.

 

If you have diclosure, follow what it says.

If you have discovery, search around here for a good document request, and send it to them. 

You are going to ask for any document that shows assignment, complete chain of title of the account.

A complete accounting of what they claim is owed, and how they arrived at the figue they are suing you for.

The governing documents that control the chain of title, also known as the purchase agreement.

The contract that governs the account from HSBC and Cap 1.

 

There is more, but you will need to search for document requests.

 

Type it up on court paper, if you don't have a blank one, make one--just make it look like the paper they sent you when they served you-- court stuff on top, their name your name, etc. then title the paper Defendant's first request for production of documents.  Then list in numbers the stuff you are asking them for.

 

Do this before your conference, then when you go you can say you made discovery reqests, and are awaiting their answer.

 

If they don't answer by 30 days, see if you need to do a meet and confer (in your rules) or if you can file a motion to compel.

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Since you are so limited on time you need to get prepared for your pretrial first. Your main goal is to not make any mistakes and buy some time to get more prepared. 

 

Then go here and check out these FDCPA cases filed against Midland in your state.

http://dockets.justia.com/search?parties=midland&state=massachusetts&nos=480&cases=mostrecent

 

You can click on the links and find the attorneys under the plaintiff's names. Find one of these that is near you. Then call them up and ask about getting a consultation. Take all of your information including any letters that Midland has sent you. Any recorded messages will be even better. An attorney that specializes in FDCPA claims will be able to tell you if they have committed any violations. An FDCPA case can work as great leverage on your local case. Even if the attorney can't find any violations they may still give you a tip or two. The consultations are usually free and all it will take is your time. 

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Thank you, ArtVandelay. Yes, if this is the account I suspect, it was charged off and in default in 2011. Cap 1 purchased assets and liabilities of the HSBC credit card units in May 2012. (and I am communicating only by CMRR - thanks for the reminder!)

 

And thank you for the links and other tips. There have been no blatant FDCPA violations (abusive calls, etc.) but if it turns out that Midland knows they are not the owner, that may be another matter. I will look into it.

 

I did have one consultation with atty (that I can't afford) who hinted he would take a non-licensed collector route. That was one of my affirmative defenses.

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Thank you, Shellie. I didn't realize that I could request documents before pretrial conf.

I have a good example of request and I will get that rolling.

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Thank you, HotWheels.

It appears Mass does have a borrowing statute. Are you referring to the SOL in the Plaintiff's state limiting the SOL of Defendant?

 

Since Plaintiff is in CA, the SOL is 4 yrs for written contract - so I'm short by a few months.  If there's any talk of a verbal contract, then maybe...

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Hang on, did I see that correctly?

 

Attorney's statement that firm is duly authorized and has been provided with info from the books and records of Plaintiff... believed to have been calculated by totaling all charges, debits, etc.

 

Are you saying that there was a written statement by the attorney included with the summons/complaint, testifying to the written/computer records that they received?  Can anyone who's more familiar with MA laws back me on this--I was under the impression that an attorney was not able to submit testimony like this....

 

mmass--the borrowing statute is better used for the Delaware SOL--most credit card accounts start off with an agreement that specifically states that the laws of Delaware apply...and if I recall right, DE has a three year SOL on these accounts. 

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Thank you, Krafty.

I don't actually have the CC agreement but I will look for the governing state in what is produced by Plaintiff.

 

I believe that attachment is to fulfill Mass GL that states:

Section 13B. No complaint in any civil action shall contain an ad damnum or monetary amount claimed against any defendant, unless such ad damnum or monetary amount claimed indicates damages which are liquidated or ascertainable by calculation and a statement under oath by a person having knowledge thereof is attached to such complaint setting forth the manner in which the amount of said damages was calculated. For the purposes of this section complaint shall include a claim, crossclaim or counterclaim.

 

The full text of that attachment is:

The undersigned states that he is a duly authorized attorney of the Plaintiff and has been provided with information derived from the books and records of the Plaintiff as it pertains to the account balance of the Defendant and that the amount due the Plaintiff as set forth in the ad damnum of the Plaintiff's Complaint is believed to have been calculated by totaling all charges and debits to the account and subtracting therefrom any credits believed to be due the defendant.

The foregoing information is accurate and complete to the best of his knowledge and belief this day under the pains and penalties of perjury.

AMOUNT DUE THE PLAINTIFF: $$$

<signed with Atty name>

 

If there has been any problem with that in other cases, I would doubt they would include it. (but one never knows...)

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Thank you, ArtVandelay. Yes, if this is the account I suspect, it was charged off and in default in 2011. Cap 1 purchased assets and liabilities of the HSBC credit card units in May 2012. (and I am communicating only by CMRR - thanks for the reminder!)

 

And thank you for the links and other tips. There have been no blatant FDCPA violations (abusive calls, etc.) but if it turns out that Midland knows they are not the owner, that may be another matter. I will look into it.

 

I did have one consultation with atty (that I can't afford) who hinted he would take a non-licensed collector route. That was one of my affirmative defenses.

 

Like @HotWheels96 said if HSBC is the OC then you can use VA law. This is assuming MA has an enforceable borrowing statute.

 

Read these links if you haven't already read over MA. collection laws.

 

http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/209CMR18.pdf

 

http://www.lawlib.state.ma.us/source/mass/cmr/cmrtext/940CMR7.pdf

 

Make sure any attorney you speak with has FDCPA experience. Most other attorneys are clueless when it comes to fighting JDBs/CAs. Other issues to look at may include the interest/fees they are charging. Whatever they charge needs to be legal by state law and/or contract, so make them produce a copy of the original agreement. This also includes post charge off interest which is illegal in many states. 

 

Midland also has been sued in many states for bringing legal action without having the evidence/documentation needed to prove their cases. If you bring up the license issue they will claim that they are a passive debt collector. They buy the debts under one name, send letters and make phone calls under a different name and then sue under another. Encore, Midland Funding, MCM, etc. This is something that could easily confuse the least sophisticated consumer under the FDCPA.

 

Just make sure and have MA case law to back up any argument that you make. I would still consider speaking with one of the attorneys on the list above. With that many cases in such a short amount of time they definitely have an Achilles Heel. You just need to find out what it is in your state. 

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@ ArtVandelay

 

A 2013 update to Mass 940 CMR 7.03 now defines:

 

Creditor means any person and his agents, servants, employees, or attorneys engaged in collecting a debt owed or alleged to be owed to him by a debtor and shall also include a buyer of delinquent debt who hires a third party or an attorney to collect such debt provided, however, that a person shall not be deemed to be engaged in collecting a debt, for the purpose of 940 CMR 7.00, if his activities are solely for the purpose of serving legal process on another person in connection with the judicial enforcement of a debt.

 

I'm having trouble finding Mass case law involving "passive" collectors but I have a couple of US District Court cases where licensing was required even though Midland claimed to be passive. I'm not sure about how the last sentence of the above definition can be interpreted, though.

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This is all I can find and it is eight years old. You need to find something newer that has a more favorable opinion. 

 

http://www.mass.gov/ocabr/business/banking-services/banking-legal-resources/opinions-and-decisions/dob-selected-opinions/collection-agencies/selected-opinion-06-060.html

 

This is one of those questions that comes up quiet often with Encore and its "children". This is one area that they will more than likely want to go away if ever challenged in federal court. I wouldn't hesitate to bring it up, but having a MA case opinion to back it up will help you in the future. This is assuming one exist. 

 

In my state they have argued against having a collection license for years. The state's collection board has even issued several opinions stating they do not need a licence. Then for some reason last year they finally bought a license. I'm guessing the main reason is too many people challenged them in federal court. 

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It looks like VA SOL is 5 years (3 years verbal).

 

Let's see if they say I opened an account by phone.

 

Some of the HSBC agreements have Nevada as the state. Nevada's SOL is 4 years. 

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