santiella88

Sued By Midland and Law Firm is Abusing Procedural Rules! Need Help! Getting Sticky!

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NOTE: THIS IS LENGTHY, AND I'VE TRIED TO FIND ANSWERS TO THE ISSUES I'M FACING ON THIS FORUM TO NO AVAIL. PLEASE BEAR WITH ME! I PROMISE THIS WILL MAKE FOR GOOD READING  :yahoo:
 
Hello, 
 
I received a summons from Midland in December.  Shortly after they filed the lawsuit, the notorious NJ  DC law firm, I'll just call them "P", called me and told me if I set up a payment arrangement, the lawsuit would "go away."  At the time, I agreed to the payment arrangement.  A couple of days later, they sent me a letter, dated December 26, 2013, saying I had to sign and return the agreement BY MAIL no less, by December 29, 2013, or else they would "have to continue with collection efforts." Mind you this is only 4 DAYS from the time they MAILED IT, not from when I received it! When I got the notice, I decided not to sign it, because I had no idea what a consent judgment was at the time, and it that phrase didn't sound anything like the payment arrangement I thought I was agreeing to.  I timely filed an answer with the court, and on the same day, hand delivered a copy to P a couple of days later. Someone suggested that I also mail a copy of everything to P just to make sure they got it. I did this, but a couple of weeks later (several weeks of bad weather).  I should also note that I filed a FDCPA counterclaim based off of the  payment arrangement/consent judgment, since they didn't tell me I was agreeing to a CJ on the phone, said that the payment arrangement would make the lawsuit go away, and tried to put me under "duress" by only allowing me a day or two to sign and return the CJ by mail.  I also submitted a motion to allow discovery, since we are only limited to 5 interrogs, and submitted requests for admissions, the 5 dogs, and requests for documents.
 
A couple of days after I dropped off the documents to P, I received a letter dated the same day I dropped everything off trying to confirm our "agreement" to the consent judgment.  I wrote on the letter stating that I did not agree to a consent judgment, and sent a certified copy of this to them and to the court. Later in time, can't remember the date, they called me stating that they wanted to discuss my answer.  I simply said I was advised not to speak to them and hung up. Mind you, I am going at this alone so far, thanks to this awesome forum and all of the extremely useful resources provided by Mr. Phil Stern's website.  
 
On February 14, P filed an answer to my counterclaim, denying the allegations - typical failure to state a claim, and also that the claim was frivolous. 
 
When what I assumed to be the deadline for discovery passed, February 20, 2014, I sent them a letter saying I hadn't received their responses to the interrogatories. However, I failed to state the 10 day rule - one of many mistakes I've made so far. I sent certified to court and to P. 
 
P responded by saying that they never received any docs I hand delivered, that they didn't get notice of any documents or answers or counterclaims (by mail) until February 12, that they only received notice from JEFIS on February 10, so they had until March 14 to respond to discovery. However, they submitted answers to my RFA's and of course objected most claiming I didn't define certain terms so they refused to answer. They also stated they were objecting my motion for discovery and advised me that the motion was premature because discovery hadn't closed yet. I did not receive any responses to my discovery request by March 14, even though this is the date they themselves decided was appropriate. I didn't receive anything yesterday either! CAN I DO SOMETHING WITH THIS FACT?
 
So I am confused - how do they object my motion to permit discovery, yet submit answers to my RFA's? The judge was supposed to rule on this motion on the 14th. The docket has not been updated yet. 
 
On Thursday, I received a pretty thick packet from P and P. It was their own requests for discovery.  They also submitted 35 interrogatories and 39 requests for admissions! 
 
Since they opposed my motion to permit discovery, are they allowed to turn around and do this? Do I have to answer them even though I submitted the motion to permit? Also, if I have 30 days to respond, and trial is set for April 17, should I wait until the last possible day to respond? I received this packet from them on Thursday, March 13, 2014. 
 
P also included ANOTHER answer to my counter claim in this packet. They used the same defense and time barred???? I am not sure what they were referring to or what they meant, they didn't cite any law/rule. I thought you had a year to file an FDCPA claim. They also requested dismissal, and opposed my motion for summary judgment, claiming that it was premature because discovery was not over, and that I had not asserted a factual basis that allows me relief. My other mistake was submitting the court forms for the msj, but I did not attach a statement stating why it should be granted. However, after receiving the requests for admissions, and nothing else, I wrote them a letter defending a discovery end date of February 20, 2014, and told them that claiming they didn't get the paperwork would not relieve them of this deadline.  I don't know how I will be able to prove this, but I went ahead and filed a motion to dismiss for failure to answer discovery.  I also asserted they should not be allowed to use stalling tactics to gather documents that they should have had together before they filed the lawsuit. I asked the judge to rule that the close date was Feb. 20, and dismiss because they had not complied. Another mistake - I didn't explicitly say they had 10 days when I sent the reminder, so I'm not sure if the reminder will be enough to back this up. 
 
Miscellanous facts, I have seen "signatures" from 4 different attorneys on this claim.  One filed the lawsuit, tried to get me to agree to consent judgment, one filed the answer to my counterclaim, and now this douche bag I've been corresponding with here lately. 
 
The RFA's they sent included reference to certain exhibits for me to confirm or use to answer my questions.  The exhibits included two affidavits from Debt Collectors about an assignment of accounts - chain of title docs; a bill of sale for each subsequent assignment, and one exhibit in the first assignment sequence, labeled a statement of accounts, but all of the info was blacked out. Also, in the second assignment, the bill of sale made specific references to certain portfolios, but these were black out as well. lastly, they attached a credit card statement from June 2011, but it doesn't appear to be the last bill they sent on the account. there aren't even any late fees on it for that billing period!!! It actually looks a little shady and I would be interested to know what an actual last periodic billing statement looks like. is there a certain format or certain information that a last billing statement must include?
 
So, now that I've walked you through the lengthy details of where I am so far, I am at a loss as to what I should do next! PLEASE HELP!!!!!  :waah:  ::drowning::  xThudx  xhitwallx
 
Is it too late to amend my MSJ? Or even my counterclaim? Can I file another motion to dismiss for failing to answer rogs?
 
Can I use the exhibits they attached to the RFA's against them to argue that they have no evidence that they own the account? 
 
Can I file a motion to strike the affidavits, even though I am not sure they have even handed them to the court yet? Do I have grounds to attack these?
 
I saw someone make reference to this before but didn't find an answer, why would Midland make an inquiry to the credit bureau a couple of weeks before filing a lawsuit against me? Are they allowed to do this?
 
Also, I have a question I would like to ask someone off forum, so if someone would please allow me to pm them, I'd be grateful! 
 
 
 
 
 
Additional Info: 
 
The case is in NJ. Special Civil Part. Breach of Contract. 
 
Less than $2,500 cc account
 
Within SOL. - 6 years
 
Did not send DVR before lawsuit. 
 
Can't remember any correspondences pre-lawsuit. Not saying it didn't happen lol!
 
This debt has been disputed with the credit bureaus. 
 
Can't remember last payment. The bill they sent is from May 2011. They made reference to a payment I made in 2010. 
 
Currently awaiting trial with no jury, 4/17.

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The major mistake you made was "dropping the documents off to the law firm" because that is NOT how you file those documents.  You have to do it through the court or via certified mail.  What ever the civil procedure is in NJ.  

 

Without knowing what you said in your answers or what they are asking it is nearly impossible to advise on what you should do next.  

 

"I saw someone make reference to this before but didn't find an answer, why would Midland make an inquiry to the credit bureau a couple of weeks before filing a lawsuit against me? Are they allowed to do this?"

 

Because they want to see how deep in debt you are, to update their trade line, and their potential to collect from you.  Yes, it is legal it is a permissible pull since they are collecting and reporting on a debt on your CR.

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Who is the OC? Do you know the actual DOFD? If the actual DOFD is greater than three years before the date of the summons, and the OC is domiciled in DE, it IS past SOL.

 

One thing we tend to forget. DC attorney can do whatever they want--unless we, using the appropriate legal tools that are available, prevent them from doing it. They file lawsuits. The judge rules on them. Only very, very rarely will a judge look at the scanty documentation provided and deny the suit, unless there is vigorous and appropriate countering by the defendant. 

 

The fact that they are playing dirty isn't surprising. It would be surprising if they didn't. Lawsuits are like a tennis match. You don't need to be the best player, on paper, to win. You just need to be the last one to get the ball over the net and in bounds.

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make sure you you answer their discovery requests with the "This request exceeds the maximum allowable number of discovery requests and is thus improper in form and is ...... (whatever else is wrong ie. ambiguous, unintelligible, calls for conclusion....) and therefore defendant/ counterclaim plaintiff denies the same. kind of response because they will try for deemed admissions

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@Wins the Battle is the DOFD date of first delinquency? If so, they have not said, and I have no idea. They sent a bill from May 2011, and asked if I made a payment in September of 2010.  OMG! You know what???? In my request for admissions, I asked them to admit or deny that they could obtain copies of the terms and conditions that governed the account at the time it first went into default. They refused to answer because I didn't define what "first went into default" meant. Could this be why they refused to answer???

 

Also, the original creditor is Citi---bank.

I also wanted to note in reference to my questions about discovery that NJ Special Civil Part rules say "discovery shall be completed as to each defendant within 90 days of the date of service of that defendant's answer." This would technically be up until the day of the trial. However, any additional motions I submit must be done 30 days before the trial, which would be tomorrow.

 

Btw, I love your tennis analogy!

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@Clydesmom yes, I definitely smacked myself in the forehead for this one. In NJ special civil, you can hand deliver, but I neglected to get any verification from them that they received it. Later I sent stuff in the mail certified, and they are trying to use the date I sent certified as the date I submitted my answer, counterclaim and discovery requests. 

 

In my answer, I denied the allegation that I owe Midland money, or breached a contract with them.   I asserted the defenses that they have no standing to sue, that a contract exists between me and them and have not verified the amount owed. I asserted that the plaintiff has to be readily able to demonstrate their right to sue at the time they file the lawsuit, and they had not done that. 

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@santiella88: DOFD is date of first default. You do NOT need to define that for them: they are supposed to have the records that verify. However, it's good for YOU to know, anyway. It will govern reporting to the CRAs, among other things. You should also know how default is defined in your state. In some states, the SOL can be reset by any payment at all. In others, only a payment that brings you current on the bill resets.

 

If you paid by check or auto pay, go through your checking account records. If you don't have them, pay your bank to copy them for you; it's worth it.

 

If this was Citi, you are out of luck as to SOL: they're SD, not DE.

 

FDCPA has a one year time limit for filing suits against collectors. But you are much less than that, so the fact that they are arguing SOL may mean nothing more than that they forgot to erase that defense when they adapted the collections software for your case. Or, they could be throwing everything they can find at the wall and seeing what sticks. Who knows?

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@Wins the Battle

 

Do you know the actual DOFD? If the actual DOFD is greater than three years before the date of the summons, and the OC is domiciled in DE, it IS past SOL.

 

 

The DOFD is always applicable for the purpose of credit reporting, but it is not always the date that determines the SOL for a collection lawsuit because it is not always the date of last payment on the account.  Most, if not all, states based the SOL on the date of last payment.  

 

New Jersey does not have a borrowing statute.  While one could claim the SOL of the other state, it would be up to the court to determine if the cause of action accrued in the other state.

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@BV80: thanks, I misremembered re the existence of a borrowing statute.

 

It is true, despite the credit reporting issue, that creditors and JDBs will re-age, based on ANY payment, and as we all know, it's their word against ours, and the CRAs listen to them, not us.

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@Wins the Battle

 

I guess creditors could re-age the DOFD to extend the reporting period, but I really don't see where it would benefit them, especially if they sell the debt.  I could see a JDB doing it, but if the OC is reporting, the JDB, if they report a DOFD, would have to report the same date as the OC.   A JDB is more interested in the SOL for collection so that they can sue.

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@Wins the Battle

 

I guess creditors could re-age the DOFD to extend the reporting period, but I really don't see where it would benefit them, especially if they sell the debt.  I could see a JDB doing it, but if the OC is reporting, the JDB, if they report a DOFD, would have to report the same date as the OC.   A JDB is more interested in the SOL for collection so that they can sue.

I have a particular instance that happened to me. I cosigned on a loan for my son with a subsidiary of Sallie Mae, it reverted to SMA, and eventually went into default. He was a college kid and moved around a lot and they lost track of him. 

 

Since they had "stays in one place" me to put on the hook for it, they did. It's fallen off my report, finally, but for three or four years, the reports show runs of 30/60/90 day lates, all in a time period that went well beyond the DOFD.

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That's my point. There were no payments. They re-aged multiple times during the reporting period, and in different fashions with the different CRAs. I sent validations to the CRAs, (AFTER the SOL had run) and they all came back validated. At that point, I sent one to Sallie Mae, and they responded, about two months later, that they were not responsible for how the CRAs displayed the information they sent them.

 

Three months later, though, it dropped off.

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@Wins the Battle

 

If a payments is made after the DOFD, unless the payment brings the account current,  the DOFD doesn't change.  The account has to be brought current for a late payment to change the DOFD.   You can make all the payments you want and every one of them can be late, but unless one of them brings the account current, the DOFD stays the same.

 

If the furnisher changed the actual date of DOFD as it was reported on the credit report, they were in the wrong.  However, if they didn't change the DOFD but merely reported that payments were being made late (even though there were no payments), the DOFD was not affected.

 

CRAs have codes that they use to determine how something is reported.  It could be that improper codes were applied and the account just remained on the CR longer than it should have.  That's been known to happen. 

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@Wins the Battle

 

If a payments is made after the DOFD, unless the payment brings the account current,  the DOFD doesn't change.  The account has to be brought current for a late payment to change the DOFD.   You can make all the payments you want and every one of them can be late, but unless one of them brings the account current, the DOFD stays the same.

 

If the furnisher changed the actual date of DOFD as it was reported on the credit report, they were in the wrong.  However, if they didn't change the DOFD but merely reported that payments were being made late (even though there were no payments), the DOFD was not affected.

 

CRAs have codes that they use to determine how something is reported.  It could be that improper codes were applied and the account just remained on the CR longer than it should have.  That's been known to happen. 

I agree fully with what you are saying. But the reality is that JDBs are not the only ones who report inaccurately to the CRAs. And, as you say, short of suing them, there's not a lot that can be done. I consulted with a naca attorney about this particular issue, as well as other wrong information/information that varied from CR to CR.

 

He was, to put it mildly, not encouraging as to my chances in court.

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@Wins the Battle

 

I completely agree that OCs can report inaccurately.   And suing an OC under the FCRA may not be as easy as suing a JDB under the FDCPA. 

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Oye, you've made a lot of procedural missteps here.  I think you just need to slow down, and stop trying to overload the Court with motions, letters, counterclaims, etc because you don't really understand the process.  I kind of wish you would've came here first, before doing all of the things you did.

 

At this point, just show up to your conferences, refuse any settlement negotiations that you do not agree with and take the case to trial if you want to.  Or maybe try a motion for summary judgment.  Just read read read your rules of civ pro before going bananas.

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