area55

Going up againts Midland funding in dupage county , Illinois. Just a few questions

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Good day all,

 

            My mother is being sued by midland and we went to court on march 19th . She told the judge that the debt was not hers and he set a trial date for April 30th. before we left the judge, I asked about debt validation. The judge told us that the lawyer for midland would send us a copy of everything they have and he said that he will not look at any evidence if I haven't received it prior to the trail. So my question is ,should I file for discovery or is the judge correct? and. Is there anything I should be doing to beat this case? As of yet I have not received anything in the mail from midland as the judge said they would send me the debt validation in the mail. Am I being duped?

 

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Debt validation needs to be done before being sued. Based on the time frames, I'm assuming this is a small claims case? In order to conduct discovery, you would need leave of the court (aka judge's permission). As the judge stated, the plaintiff needs to turn all their trial evidence over before trial or it won't be admissible in court. I would be prepared to object to any evidence submitted in court that wasn't turned over in a timely fashion.

 

What evidence was attached to the complaint? If it's just an affidavit, then they don't have enough evidence to meet the standard in the rules of civil procedure. It's enough to file a complaint in small claims though.

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I don't know what the evidence is. we never got the complaint. I saw my mom had a court date through public search and we just showed up.

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In the interim, it would be highly advisable to go to your local clerk of courts and procure a copy of the complaint filed against you. Some of it you could possibly find in an online docket if your county/municipality is progressive like that but you might not get all the attachments. You need a copy to game plan. Too late in the game for debt validation now that a civil suit has been initiated. 

 

The trial is in 24 days... If the judge didn't give the plaintiff attorney a deadline for sending you the documents and if your civil procedure allows (download a PDF copy of your state's Civil Procedure), send a letter CMRR requesting it and provide notice to the court of said letter requesting the documents. You do not want them sending you the documents the day before and get blindsided. 

 

And by you, I mean your mother as only she can defend this since you are not an attorney.

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I agree with @elite1331, you need to get a copy of the complaint. I'm surprised that they didn't give your mother a copy when she went to court, considering she waived service by showing up unserved. I don't believe Dupage County posts any docs on-line. She could ask the opposing lawyer to e-mail her a copy if she can't get to the court house. Although that could invite them to email her their other evidence at the last minute. 

 

I'm going to see if I can find anything in the code that indicates when small claims evidence needs to be turned over.

 

Edit: By the way, other than a formal denial in front of the judge, has your mother filed any paperwork with the court?

 

Edit 2: There is no required turn over of evidence prior to trial in a small claims case. Since the judge told them to do it, they will have to comply. How far in advance they have to comply will be at the judges discretion. 

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I agree. Get the Complaint. If it lacks chain of title (assignment), then your mother should have FDCPA counterclaims. That might shake them off in Small Claims. We can't know for sure until you post the vitals, they're listed in the forum but I have no idea how to repost them. Who's suing, how much etc....The Judge in Dupage SC is very fair, any ideas about how to get a continuance for lack of service? Can she file a motion in limine? Then if the complaint is deficient she can file a Motion to Dismiss. If it's a JDB it almost certainly is. I defer to  Spikey and Gwheelock in these situations, as they are our resident Illinois scholars and helped me win my case. Spikey the Judge in Dupage sets the timeline for evidence to be mailed from both parties about ten days out from trial. He absolutely won't accept it otherwise.

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Look over the Statute of Frauds in your state. See if it mentions "credit agreements". If it does, see what a prima facie credit agreement is and juxtapose those requirements to all the current and future stuff JDB will file/send. If it's not all in the file, file a MFSJ based on JDB's non-compliance with the Statute. Could be an easy slam dunk! Good luck!

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@InProSe

Nope. Still a no-go.

www.iicle.com/links/ContractLaw08-Ch3-Rastatter.pdf

And I encourage you to read the section on credit agreements which is different from a credit card agreement...

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Then if the complaint is deficient she can file a Motion to Dismiss. 

 

I was helping another poster with a case where we tried that tactic and JDB was ready for it. The pleading requirements for small claims are much looser and they can get away with their usual half-arsed tactics at least upfront. All the deficiencies are still available for attack at trial though, but there are also relaxed evidence requirements in small claims. Makes things a little tricky.

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Thx for the heads up. Perhaps Utah is the only state in the union where all credit agreements are totally within SOF. Knowing this is how Utah consumers will defeat these frivolous law suits. Power to the consumer!

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Why can't I @mention anyone? *sigh* Spikey I was thinking more along the lines that Midland A.K.A. Asset A.K.A. Encore Capital probably doesn't have the written instrument or any documentation whatsoever; especially since it does not appear that the O.P.'s mother validated beforehand. They love that, and spend as little as possible to prepare. Why bother, when you don't think anyone will show up? Since it's Midland, I assume the attorneys are F.F.@G, and they only go to court for an ex parte default or a garnishment order. If anyone shows teeth, they vanish. It's just not in their business model. As you have said before, it's pretty easy to cure a 2-619 MTD for failure to prove chain of assignment under 2-403 for pleading purposes. They just need that Bill of Sale that claims they purchased 40K accounts on this day. Trial is entirely different, they need a warm body with Personal Knowledge. If it's the standard Encore Complaint, we know there's basically just a Bill of Particulars and a robosigned affidavit. Since the O.P.s mother seems a little nervous and might be too shaky for a trial, and if it's possible, fire off a 615 for failure to provide the written instrument. Or is that what you tried with the other poster you were helping? I'm just throwing ideas out; you would know better than myself if it's possible. That's why I always ask you and gwheelock first. You're All-Stars. =)

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@NaughtyJDBtease Yea, in that case the 615 motion failed as the plaintiff was well prepared in their opposition. Gwheelock is the real pro, especially in Dupage and Cook counties.

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You need to get familiar with the rules of procedure for small claims. Look up IL supreme court rules 281-289 and also look to see if dupage has any local rules pertaining to small claims.

 

I can't really be of much more assistance as I am preparing a notice of appeal and have to devote the limited time I have to my own cause.

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Sorry I haven't checked back in a few. I got the complaint! it contains just an affidavit saying that some person says that this is my moms debt. Her court date is April 30th.

 

1. we haven't filed any paperwork with the court. What should we file?

 

2. The lawyer is David Olefsky of Blitt and Gaines.

 

3. the amount we are being sued for is $4120.96

 

4. It was a JCpenny credit card.

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1. we haven't filed any paperwork with the court. What should we file?

 

 

An Appearance form needs to be completed and filed with the court. The document can be found on the county website: http://www.dupageco.org/courtclerk/courtforms.aspx

 

No other forms are required, just filing an appearance form serves as a general denial.

 

 

2. The lawyer is David Olefsky of Blitt and Gaines.

 

Don't bother with a motion to dismiss based on holes in the complaint, Blitt and Gaines has countered that in the recent past. Prepare for trial, attack their evidence, lack of authentication of documents and lack of standing.

 

Things to review: 

1) Illinois Code of Civil Procedure section 735 ILCS 5/2-403 which establishes the requirements of standing

2) Illinois Code of Civil Procedure section 735 ILCS 5/2-606 which establishes the requirements for a breech of contract claim

3) The required elements of an account stated claim: http://clintonlawfirm.blogspot.com/2012/12/illinois-supreme-court-rejects-account.html

4) This case (Unifund v. Shah): http://www.state.il.us/court/Opinions/AppellateCourt/2013/1stDistrict/1113658.pdf 

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I just got more documents in the mail from blitt and gaines. One is a bill of sale for the debt from the original debt collector and the other one is a copy of a bill collection notice from MCM. Am I in trouble?

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Also my mom will not be able to appear in court due to the fact that she has cancer and is bed ridden, she is in hospice right now. also the only source of income she has is SSI and she has no savings.

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SSI can not be garnished in Illinois, so she's safe on that account. I don't know what happens if she can't make the court date since unless she hires a lawyer no one else can represent her. I'm not sure she should even worry about it since they can't collect.

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I would strongly suggest you contact blitt and gaines and explain her situation to them. You should also look at MCM's 'bill of rights' and do what you can to invoke them. I would never recommend that approach to anyone else, but its worth a try. I would also suggest appearing on her behalf and explaining her situation to the judge and ask for a continuance.

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