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Please Help: served by Midland

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I was served by Midland Funding (Notice of Suit in Small Claims Court) but I was served by certified mail. In Rhode Island it seems to say this:

"Summons, wage and bank garnishments, as well as executions, citations and subpoenas all must be served by a constable or sheriff. Unlike the other writs, the execution must be served personally on the defendant and not left with anyone else. This can, at times, be problematic, because the courts rarely, if ever, permit an exception. Notice by publication, which is technically permitted upon motion, is in many cases practically unavailable, due to the high cost of the required legal notice in the newspaper." http://www.govcollect.org/files/Rhode_Island_Debt_Collection_Laws.pdf

So when I respond stating whether I agree or disagree...can't I put that they served me the wrong way?

Update: ok...reading online further, I saw a lawyer from RI state (in another forum) that in small claims court...you can be served by certified mail. Bah

Here is the info re: my case...all help appreciated. I'm trying to decide what to write in for my reason for denying.

1. Who is the named plaintiff in the suit? Midland Funding LLC

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

Robert E. Johnson Jr. #5575, Law Office of Howard Lee Schiff, PC.

3. How much are you being sued for? $1892.71

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

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

I was served

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

Certified Mail

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

I'm unclear. Some sources say you can only be served in person, other sources say you can be served by certified letter.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None. I've never heard of them

9. What state and county do you live in? Providence, RI

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Maybe 4 years? I do not know.

11. What is the SOL on the debt? To find out:

10 years

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). They are waiting on my response- due by 5/15. Court date 6/5

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, I did not know they had my debt

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 15 days to respond. "MCM's records show that the defendant(s) owed a balance of $1892.71". I did not receive any interrogatory questionnaire.

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

They sent an affidavit

1. I am employed as a legal specialist and have access to pertinent records for MCM, service of this account on behalf of plaintiff. I make statements herein based upon personal knowledge of those accounts. Plaintiff is the current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's CHASE BANK USA, NA. account ********. I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on plaintiffs behalf.

2. I am familiar with an trained on the manner and method by which MCM creates and maintains it's business records pertaining to this account. The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record or compilation is made at or near the time of the act or event. The relevant financial information concerning the account includes the following:

3. MCM's records show that the defendant(s) owed a balance of $1892.71

They also sent records proving I am not in the military. Nothing else was sent.

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So I would put you disagree.  Small claims is different than superior court.  Google RI's rules of civil procedure, and then search out small claims.  You need to read those, find out what the small claims procedure is.  For instance, do you both just show up at court, and bring all the evidence you have against the person, and get a ruling?  Or is there any discovery involved.  Once you know that, we can help you fight it.

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It looks like for small claims you may have mandatory arbitration.

for such a small amount, find online the chase agreement for the year the card was issued, and see if it has a JAMS arb. clause.  Your chances of winning this if you do have a JAMS arb clause are quite high, as it would cost them more to pursue the account than to just dismiss.

I don't know what the mandatory arb is like in RI, but If chase doesn't have an JAMS arb clause, I would search for arbitration rules in RI.

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Ok. Match. Point.

Answered my summons today.

My Answer: B****** C****** is not the legal name of defendant.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

Defendant believes plaintiff has not proven the debt is valid or the amount of the debt is accurate. Defendant also insists that the plaintiff come up with the contract, account statements, and purchase receipts to prove the amount of the debt.

Wherefore, the defendant asks the court for Judgement dismissing the complaint herein with prejudice.

Court Date is June 5th.

How'd I do?

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It looks like for small claims you may have mandatory arbitration.

for such a small amount, find online the chase agreement for the year the card was issued, and see if it has a JAMS arb. clause.  Your chances of winning this if you do have a JAMS arb clause are quite high, as it would cost them more to pursue the account than to just dismiss.

I don't know what the mandatory arb is like in RI, but If chase doesn't have an JAMS arb clause, I would search for arbitration rules in RI.

I found ambiguous statements about whether they had JAMS because I was able to find an agreement between Chase and JAMS for 2005. Some said this statement stood for awhile (years)...others said that Chase cancelled with JAMS and just had AAA and something else. There's so much contradicting information on the net. It's frustrating

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From what I could find- in 2007, when I opened the card, they still had mandatory arbitration- but through NAF and AAA. It's my understanding that neither of those still perform credit card arbitrations....so then what....?

ALL help appreciated

Also...there are 16 rip-off reports on the lawyer that's suing me for Midland...16!!!!!!

http://www.ripoffreport.com/reports/directory/howard-lee-schiff

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Ok. Match. Point.

Answered my summons today.

My Answer: B****** C****** is not the legal name of defendant.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

Defendant believes plaintiff has not proven the debt is valid or the amount of the debt is accurate. Defendant also insists that the plaintiff come up with the contract, account statements, and purchase receipts to prove the amount of the debt.

Wherefore, the defendant asks the court for Judgement dismissing the complaint herein with prejudice.

Court Date is June 5th.

How'd I do?

Ok so after I filed my answer, asking for purchase receipts, contracts etc...the lawyer sent me:

1. A statement on MCM letterhead that says the above-referenced account was purchased by MCM and is serviced by MCM. Pls direct all correspondence to MCM

2. A packet with copies of old credit card statements from 7/09-09/10. Looks like, from reading the statements, in Jan, 2010 the card statement reflects I originally owed $1000..the rest of the credit statements up till 09/10 are all late fees, purchase interest charges. So from Jan, 2010- Sept, 2010 is all interest etc.

3. A letter that Midland (supposedly) sent me on 09/12 "PRE-LEGAL NOTIFICATION" saying they've tried to contact me and are considering taking legal action.

He didn't send any purchase agreement between Midland and Chase re my account...but will the judge look at the letter saying they purchased the account and take that as proof????

I'm so nervous. Pls, any advice would be so helpful!!!!!

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find one for the year the card was opened.  AAA does not do consumer arb any longer, they were fined and found to be biased.  they can only do business arb.  Push for the JAMS.

NAF is no longer doing consumer arbitration: http://www.creditcards.com/credit-card-news/arbitration-lawsuit-naf-settle-1282.php

 

I thought I recalled that AAA was not accepting business initiated claims against consumers for CC debt collections (as indicated here: http://www.lb7.uscourts.gov/documents/ILND/09-4819.pdf) but this CFPB preliminary report seems to indicate otherwise: http://files.consumerfinance.gov/f/201312_cfpb_arbitration-study-preliminary-results.pdf

From 2010 through 2012, around half the credit card AAA arbitration filings were debt

collection disputes—proceedings initiated by companies to collect debt, initiated by

consumers to challenge the company’s claims in court for debt collection, or mutual

submissions to the same effect. More than a quarter of these debt collection arbitrations

also included non-debt consumer claims.

 

The AAA consumer statistics also seem to indicate ongoing activity in credit card debt collection claims. ~427 Type of Dispute = Consumer Debt Collection listed as running through late 2013.

 

What're the chances of the judge dismissing based on my answer to the summons?

Pretty much nil AFAIK.

 

A properly done motion to dismiss would be the path of choice for me if seeking a dismissal. Although, outside of a running of the statute of limitations or some other non-amendable dismissal issue I would not be likely to file one. Especially as a defendant in a collection case. Some insights here: Strategic Motions to Dismiss (or Lack Thereof)

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I haven't seen a Bill of Sale or any type of proof that they purchased the debt. And the affidavit on the Summons was signed by a MCM employee, which is hearsay...would that not be good proof for a MTD? And I know it's too late to file a motion to compel her to testify re whether she has ANY knowledge of ANYthing

But...since I already answered the summons, is it too late to file a MTD?

If someone reads this...could you point me in the right direction on what to do? Please....there's SO much great info on this web sight and there's so many different tactics and strategies I just don't know what direction to go in...

It's May 19th and my court date is June 4th...I know it's too late to do a Motion for Discovery...yet another mistake I made

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I've read through all the information. It's too late to file a motion for Discovery. Should I ask for a continuance when I go to Trial? So that I can send a Discovery letter and possible subpoena the person who signed the Affidavit? (it's fake like all the others). Honestly...I'm going to trial soon...and have no idea which motions to bring what direction to go in. I'm in RI and have looked through the RI Rules of Evidence and CANNOT finds anything related to JDB. I know most ppl here don't know RI law

Everything I've read has amazing information, but all the motions I should have filed, everything I should have done earlier...I didn't...I spent a lot of time trying to get a lawyer before I even answered the summons...it's too late...I screwed myself. I have the old credit card statements the lawyer sent me and some other junk paperwork.

Now I have a trial and I'm going in blind.

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Ok...I found this on the back of my summons in veryyyyyyy little writing...

"On the day of the trial it is essential that you bring all your witnesses and all papers involved to court with you. If you have a document which requires expert testimony, such as a repair bill, or an opinion as to the cause...you must bring the person who prepared it to court with you as a witness. It is not enough to bring a written statement or a sworn affidavit. You should notify your witness as soon as you know the trial date. And it might be helpful to make a brief outline of your case for your own use. However the small claims procedures are designed to be informal and a clear presentation of your position is most important.

The plaintiff will tell his/her side of the case first. When the plaintiff has finished, you will be given an opportunity to ask the plaintiff or his/her witness questions about the testimony or evidence and then you will be asked to present your side of the case. When you are finished, the plaintiff will have an opportunity to ask questions of you and your witness".

This means their sworn affidavit (from Minnesota) is "out the window" :) I just have to make an outline of what I want to say and prepare myself to answer their questions. This is a relief for me...now I just need a complete plan.

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So know your rules of evidence. What do they need to prove their case?

You will challenge their standing. Dispute and object to any bill of sale they bring to court. It won't have your name on it, and nothing to connect it to your specific account.

You will dispute the balance. Research everything you can about chase and their problems. Chase is no longer selling their junk debt at the moment because they got in trouble for poor record keeping. Google the term Linda almonte, she was a whistle blower for chase. Things you print off the internet will be heresay, but I would print it anyway, bring it with you on their (chases) deceptive practices.

Use google scholar, for your state, and if none for your state, the circut court your state is in. Find case law about things that can't be admitted into evidence. Write those case citations down.

Search out motions in limine here. I know homelessinca has a good one. Read it. Take some of those same elements as a guide for you, insert your own states law citations as to why they are not entitled to collect on this debt.

Take that with you to court. If you write it up like a motion, you can give a copy to the other side and judge at trial if allowed, if not allowed, you object to each piece of evidence they try to introduce, and read off your motion as to why.

Small claims is supposed to be less formal, and easier, but it think it is harder because you can't do all the proactive legwork beforehand, you have to do it at trial. Dress nice for court, and put your game face on. :)

Hopefully it makes sense?

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Oh and their affidavit is only out the window if you object to it. Find your case law as to why it should not be admitted.

Bill of sale ( if they provide one) does not reference your account. If they don't provide one...case over.

If they introduce a data sheet, object it is a self serving document printed by them.

Look up your business rule exception to heresay, and use that in your objection.

Statements are heresay. Object to those, and if they did not include any that shows any credits, payments or charges, they don't have the proof you used the account.

Ok hit your rules, and find your case law. Glean what you can about chases woes, and why they are not selling their junk debt right now. Chances are if you had the account and it was in trouble in 2008-2009-2010, then your account could be one of those in question.

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Oh and their affidavit is only out the window if you object to it. Find your case law as to why it should not be admitted.

Bill of sale ( if they provide one) does not reference your account. If they don't provide one...case over.

If they introduce a data sheet, object it is a self serving document printed by them.

Look up your business rule exception to heresay, and use that in your objection.

Statements are heresay. Object to those, and if they did not include any that shows any credits, payments or charges, they don't have the proof you used the account.

Ok hit your rules, and find your case law. Glean what you can about chases woes, and why they are not selling their junk debt right now. Chances are if you had the account and it was in trouble in 2008-2009-2010, then your account could be one of those in question.

GODSEND...PURE GODSEND. I couldn't find Rules of Evidence for Small Claims Court anywhere...and it's different then District Court I think, so I will go look to the Circuit

THANK YOU!!!!

Will start right away. Thank you, thank you, thank you

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@shellieh98

 

@Breezyflavor

 

Oh and their affidavit is only out the window if you object to it. Find your case law as to why it should not be admitted.

 

 

I agree in part and disagree in part.  How's that for legalese?  :-)

 

Merely objecting to an affidavit will not always, for sure, get it thrown out.  However, I do agree about case law.  If you can show why it should not be admitted and have supporting court rules or precedent to support your objection, you have a better chance of getting all or part of it thrown out.

 

Some courts have ruled that certain statements in affidavit can be inadmissible hearsay even if the entire affidavit is not inadmissible.

 

What was stated in the affidavit?

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The affidavit says My name is so and so, I am an employee of Midland...I have knowledge of their business practices and you owe this debt...says nothing specific to me, except the amount stated that I owe.

Do I need case law to get it thrown out? On my summons it says sworn affidavits are not allowed, that the person must come with me to court...would the same not apply for their side?

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Have you tried google scholar?

Yes. I did a search for "Rhode Island Rules of Evidence" in quotations and it brought up cases etc in which they were cited, but nothing that stated -what they are-. And I researched Linda Almonte (Chase whistleblower)- which could help me...but how do I introduce that in court? I found the RI Civil Rules of Procedure which was helpful.

The Small Claims website on our gov't site is 'Coming Soon'

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So when I found the list of RI Rules of Evidence (which was just a list...had NO info) ...it stated this....

"In Rhode Island, the rules of evidence govern proceedings in the courts of the state. The rules other than those with respect to privileges, which shall apply at all stages of all actions, cases, and proceedings, do not apply in situations such as: Preliminary questions of fact; Proceedings before grand juries; Miscellaneous proceedings such as statutory small claims proceeding in the district court; motions for leave to issue a writ of attachment; applications for a temporary restraining order; applications for the appointment of a temporary receiver; motions for a stay of judgment;; proceedings for extradition or rendition; proceedings for sentencing; issuance of warrants; proceedings with respect to release on bail or otherwise; proceedings for granting of probation or parole; and proceedings on probation or parole violations; and Contempt proceedings in which the court may act summarily. - See more at: http://civilprocedure.uslegal.com/rules-of-civil-procedure/state-rules-of-civil-procedure/rhode-island-rules-of-evidence/#sthash.FN7Ndbsm.dpuf"

So am I wrong or is it saying RI Rules of Evidence do not apply to Small Claims Court...

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I went to www.small claims Rhode Island.  I read the SOL is three years and they must file where the defendant resides. So if your last payment was 4 years you may be good here. You don't need to worry about RI Rules of higher courts if you are in small claims court , everything is different.  The max in small claims in RI is 2500.00.  You need to read the Rhode Island Small Cliams Court Rules!!

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