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Please Help: served by Midland

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Did they send you a demand letter??  Can you figure out when your last payment was. It says in court you must notify the judge if the SOL has run out.

I read that the SOL is ten years and that it's a "catch-all" for most things. The Small Claims website in RI.gov is down. I'm going to call tomorrow and verify the SOL, but I think it's 10 yrs. God how I wish it were three. I've never heard of R.I. Small Claims court rules and haven't been able to find any specifics. All I know is that it's informal- but if I file a motion, I need to do it now and I was thinking of filing a discovery motion- but think I'm too late...court is in 3 days! So I'm trying to put a plan together of how I'm going to approach this in the courtroom.

I'm banking on the lawyer not having the Bill of Sale when I get there

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Is there discovery in small claims court? Are you confusing small claims with justice court. So your hearing is in a couple days===What is your defense going to be?

No, I don't think there's actual "Discovery" in Small Claims- but in my answer on the Summons to the court and the Plaintiff (Midland), I denied, stating that I had no information to show that what the plaintiff stated was true. Then for my affirmative defense I said I believed the plaintiff didn't prove the debt was valid or the amount accurate. I stated the plaintiff hadn't come up with the contract, account statements, and/or purchase receipts to prove the amount of the debt. Then I asked for Judgement dismissing the complaint herein with prejudice.

So I'm going to go by that. I have researched RI State law on evidence (certified copies, files etc), producing documents, affidavits/hearsay, standing and dismissals. I'm going to bring all that with me to court to use if I need back up. I read these boards, learned about heresay and I'm going to request the affidavit be thrown out based on heresay. And I'm going to ask the lawyer to produce all the above listed documents. And if he can't I will ask for the judge to dismiss with prejudice (which I think means they can't re-file) and site the dismissal law to back me up.

Also, after getting my answer, the lawyer sent me old copies of credit card statements, a letter Midland supposedly sent me saying Pre-Legal Action, and a statement claiming Midland owns my account (on Midland stationary). None of these are certified copies- so I don't believe he can use them in court. I will state that and back it up siting the evidence law. In the paperwork the lawyer sent me, there are four different *Final* amounts that were stated I owed...they differ by dollars and cents- but I'm going to question that and ask how they decided to sue for this particular amount.

How does that sound? I'm also wondering if I should bring any prepared motions to court with me or if I can just orally request them...

These boards are a lot of help when figuring out strategy

Thank you for responding!

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I would put all of what you said in a trial brief and make 3 copies. One for the atty , judge and you. It will help you to stay organized. I might have missed it but was their an affadavit backing their evidence. If not it should be thrown out, unless they were intending to bring a witness, highly unlikely.  The differing amounts were the interest they added in the prelegal notifications. They usually back it out in the complaint, but may have added atty fees.

 

Always remember to object,to everything with a reason, such as statements, objection your honor irrelevent without affadavit.

 

Just so you can see a trial you might want to google RI civil trials, and see if there are any on you tube to watch.  went t court and watched a few and Marvin in Az has a u tube on a trial.

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Now...I will Google what a Trial Brief is...that is how new I am to this. There was an affidavit but it was the generic ones I've seen all over these boards "I am an employee familiar with Midlands business practices and I can certify B****** owes such and such amount". I am going to google and see if there's anything.

I had a friend also sued by him, but she didn't fight, just agreed and made a payment plan. She said that in the courthouse hallway, outside the courtroom, there's a group of you, a woman calls your name and verifies your info. She asks what you plan to do. She goes around and checks in with everyone (she works for the lawyer). Then they all file into the courtroom, get on the stand when it's their turn and the judge reads over what you're agreement is, then you go on your way. I guess I'll be throwing them off a bit.....

ALSO.....if asked if I ever had a Chase credit card....I plan to say yes to that because I'm arguing with Midland...does that sound ok?

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post-165548-0-14915100-1401770083_thumb.post-165548-0-75268200-1401770087_thumb.post-165548-0-14310700-1401770092_thumb.

 

I attached the affidavit as well as a paper that came WITH the summons saying they were awarded...this is a scare tactic right? And I'm going to use exactly what you said. I wrote it down. "I've had credit cards before, but I do not recall one ending in XXXX"

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attachicon.gifthreat1.jpgattachicon.gifthreat2.jpgattachicon.gifthreat3.jpg

 

I attached the affidavit as well as a paper that came WITH the summons saying they were awarded...this is a scare tactic right? And I'm going to use exactly what you said. I wrote it down. "I've had credit cards before, but I do not recall one ending in XXXX"

Not scary to me if brought in AZ superior court.

 

I find small claims court a bit unnerving. I would much rather appear before an AZ court 3 levels above small claims. The AZ CoA knows the law, makes the law, and follows the law.

 

Assuming that the rules of evidence apply in RI small claims and assuming I don't have to pay to be able to read them: http://legalsolutions.thomsonreuters.com/law-products/Court-Rules/Rhode-Island-Rules-of-Court---State-and-Federal-2014-ed-Vols-I--II-Rhode-Island-Court-Rules/p/100259800 (perhaps I can review them at my local courthouse or nearby law library) I would want to read them and try to have a good understanding of them. The rules of evidence, when enforced by the trial court, is how collection defendant's often prevail AFAIK.

 

As I read it, the uploaded affidavit is a conclusory statement that fails to reference any evidence and presumably none was attached to the affidavit or certified, if required by RI rules of evidence. I don't see where the affidavit brings in any admissible evidence to prove up the plaintiff's claim (s). As I read it and would not survive with me as defendant in AZ. I don't know what the courts have ruled in RI but below are some of their thoughts.

 

The RI Supreme Court doesn't appear to accept conclusory affidavits from a defendant:
--
The defendant, Cory Johnson, appeals from the Superior Court's entry of summary judgment in favor of the plaintiff, American Express Bank, FSB (American Express), for $928,028.64, plus interest and costs.
...
Mr. Johnson submits that the instant case mirrors Visconti because he stated in his affidavit that he had disputed numerous charges that never had been resolved. We disagree. Unlike the affidavit that the defendant submitted in Visconti the affidavit submitted by Mr. Johnson in the instant case consists of a mere conclusory statement that he had disputed numerous unspecified charges. He did not specify which charges he had challenged, nor did he come forward with evidence of the amount he alleged to be in dispute.
 
We believe this case to be more analogous to the facts underlying our opinion in Egan's Laundry & Cleaners, Inc. v. Community Hotel Corporation of Newport, R.I., 110 R.I. 719, 297 A.2d 348 (1972) (Egan's Laundry). In Egan's Laundry, the plaintiff filed a complaint to collect on a book account for laundry services rendered to the defendant. Id. at 720, 297 A.2d at 349. The defendant filed a reply that generally denied owing the amount stated in the plaintiffs book account. Id. at 720-21, 297 A.2d at 350. This Court stated that there exists "an affirmative duty on the adverse party to set forth facts showing that there is a genuine issue of fact that will be resolved at trial. Such party must act diligently and in good faith to rebut the evidence presented in support of the motion, and he may not save his evidence until the day of trial." Id. at 723, 297 A.2d at 351 (citing Gallo v. National Nursing Homes, Inc., 106 R.I. 485, 488, 261 A.2d 19, 21 (1970)).
...

Here, the defendant's affidavit fails to specify the charges he is challenging, the reasons he is challenging them, and the amounts he is disputing. An unsupported statement that the defendant has disputed some of the charges is insufficient to defeat the plaintiffs motion for summary judgment. As we said in Egan's Laundry, 110 R.I. at 723, 297 A.2d at 351, "the bald assertion that [factual issues] do exist is insufficient to place the [defendant] beyond the reach of summary judgment."

AMERICAN EXP. BANK, FSB v. Johnson, 945 A.2d 297 (R.I. 2008).

--

I am not sure that a RI court would find a conclusory affidavit acceptable to prove up the elements of the plaintiff's claims, but I a quick search did not find anything specific to RI plaintiff's conclusory affidavits.
 
If staying in small claims court, I would want to find and read the RI rules of evidence and attempt to use them in small claims. I would want to plan on an appeal and make the best record by objection and a proper record of the hearing.
http://www.courts.ri.gov/Courts/districtcourt/Pages/Small%20Claims%20Court.aspx#

Small Claims (Coming Soon)

Gee, your Mr./Mrs. Judge can I wait until the site is actually up to defend my case?!

 
I would want to determine the specific cause of action being brought and identify the required elements that must be proved by admissible evidence. The required elements for a breach of contract claims in RI are cited here: A breach of contract claim requires a plaintiff to show: (1) the existence of a valid contract; (2) a breach of that contract; and (3) resulting damage to the plaintiff. See, e.g., Ramada Worldwide, Inc. v. Kim, No. 09 Civ. 4534 (WHW), 2010 WL 2879611, at *3 (D.N.J. July 15, 2010) (citing AT & T Credit Corp. v. Zurich Data Corp., 37 F. Supp. 2d 367, 370 (D.N.J. 1999)); Gorman v. St. Raphael Academy, 853 A.2d 28, 33 (R.I. 2004)
 
An element of breach of contract is the contract. It also has elements that (in a court of law requiring the rules of evidence be followed) must in turn be supported by entry of admissible evidence.
The essential elements of a contract are "competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation." Rhode Island Five v. Medical Assocs. of Bristol Cnty., Inc., 668 A.2d 1250, 1253 (R.I. 1996) (internal citation omitted); See also Lamoureux v. Burrillville Racing a$$'n, 91 R.I. 94, 98, 161 A.2d 213, 215 (1960)).
 
I view my primary tasks in defending a collection suit as keeping out and objecting to any evidence that opposing tries to enter as admissible and making a proper record for an appeal court to reverse any errors or abuse of discretion by the trial judge.

http://research.lawyers.com/rhode-island/ri-after-small-claims-court.html

Appeal the Judgment

The plaintiff gives up the right to appeal by using small claims court. There is a waiver of the right to appeal on the small claims form that is signed by the plaintiff or the plaintiff's attorney. A plaintiff can appeal only an adverse decision on a counterclaim.

If the defendant loses the case, the defendant may appeal to the superior court for a new trial. However, the defendant can't appeal an adverse decision on a counterclaim. The appeal must be filed in writing with the small claims clerk within two days, not including weekends and legal holidays. Detailed instructions for filing a small claims appeal are available from the clerk of small claims court.

 
If I lacked an FDCPA or similar state (when applicable) statutory violation counterclaim, since I am not impressed with small claims court's reliable application of the law and the rules of evidence, I would probably want to compel arbitration on such a relatively small alleged debt. JAMS is expensive and preferable to the consumer as it encourages the adversary to abandon pursuit due to cost and risks exceeding their perceived benefit.
 
A "win" in contractual arbitration is usually based on the plaintiff abandoning the legal pursuit of the alleged debt or creating enough leverage based on risks and costs to opposing that a favorable settlement to the consumer is worked out. If it goes all the way to a final hearing and award *I* would expect to lose. Arbitration is a bit of a gamble and seems to work best when the alleged debt is small, owned by a JDB that paid 5% off the face amount, the CC agreement has favorable terms such as JAMS is available, each side pays their own attorney fees win or lose, and the alleged debtor has exempt income and assets. Favorable terms and situations for the consumer drive up the cost and risk for the collector and *may* cause them to abandon the case.
 
Often there are survivability terms in the CC agreement's arbitration terms that I would argue allow the use of an older agreement rather than the latest. Chase removed contractual arbitration form their CC agreements in February of 2010.
 
In the latest JAMS statistics I had downloaded in March, 2014  "Midland" appears 17 times and none of the arbitration cases went all the way to an award. Settlement and abandoned split the results with the leftover case being consolidated with another case. If similarly situated those results would make JAMS attractive for me to consider pursuing.
 
JAMS arbitration consumer statistics: JAMS Disclosures for Consumer Arbitrations
AAA arbitration consumer statistics: Provider Organization Report
 
I don't find enforcing and/or pursuing contractual arbitration terms to be a trivial task. Whether or not to arbitrate is not likely an easy decision unless the situation is lined up as highly favorable or disfavorable to the consumer. It is especially not an easy decision when a court deadline quickly approaches.
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If arbitration is determined to be the best route to resolution, Linda7 discusses the Chase 2004 and 2005 agreements in this thread: http://www.creditinfocenter.com/community/topic/311471-chase-bankone-cardholder-agreement-2005/#entry1140250

 

I founds 5 entries for Midland in the AAA statistics Provider Organization Report. The resolution of the 5 arbitration cases with Midland as I read it: 3 settled, 1 withdrawn, and 1 awarded $15k to the non-consumer.

 

AAA Rules/Procedures are here: https://www.adr.org/aaa/faces/rules

JAMS Rules/Procedures are here: http://www.jamsadr.com/rules-clauses

 

Of course there are no guarantees in litigation or arbitration and past results do not necessarily predict future results.

 

EDIT: Of course the applicability of any enforceable binding arbitration is going to be found in the specific details of the applicable arbitration clause.

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If you are going to elect arbitration, you have to do it before trial , I believe. And that is Thursday. Also if your credit card agreement says AAA or NAF, for arbitration, NAF is gone, so AAA would be the one to contact. If it does says JAMS go with that one. Also in the Chase contract I believe it states the Plaintiff has to pay your arb fees.

This would probably make them drop the case!!! I would have elected arbitration for an amount like yours than go to trial.

 

I lost at trial . My amt was much higher so I decided trial was better so  could appeal, (which I am).  So arbitration looks good for you, especially if they drop the case because they don't want to pay the fees. 

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When I thought about Arbitration I found that AAA doesn't do consumer credit anymore either- I believe in 2009- Chase had AAA and NAF. So I'm not thinking arbitration is not an option. I wish they has JAMS...but I don't think they'd pursue it for alleged debt under $2K

CREDATOR......there was nothing else attached to the affidavit...no evidence etc. After getting my response to the summons, the lawyer sent me old credit card statements and two sheets (which also,prove nothing) on Midland letterhead. The case law is IMMENSELY helpful as I've been struggling to find RI cases that I can site in court. I found the RI rules of evidence, but have heard contradictory statements as to whether they even apply in small claims. The courthouse strongly stated that small claims court is extremely "informal". So you're right about questioning the judges and their following of the law. And with the RI Small Claims website nonexistent.....it's impossible to know what to expect. But NOW, thanks to you- I have case law which was extremely difficult for me to find. I will add that to my strategy plan and will cite that, along with rules of evidence when I object to everything this guy tries to introduce.

I cannot thank you both enough. You were incredibly kind to find those resources and take the time to talk to me

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Okay I read this again in Rhode Island Small Claims Court.  SOL on a written or oral contract is 3 years.  When are they claiming your last pmt was??/ I'm not sure where you got ten years from?  If your last alleged pmt was more than 3 years before the complaint was filed than you tell the judge this is out of SOL.

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When I thought about Arbitration I found that AAA doesn't do consumer credit anymore either- I believe in 2009- Chase had AAA and NAF. So I'm not thinking arbitration is not an option.

...

As I understand the statistics they publish it doesn't appear to me that AAA "doesn't do consumer credit anymore".

 

From AAA arbitration consumer statistics: Provider Organization Report

I found the following for 2013-2014Q1. The majority appear to be debt related with a few employment disputes in the mix.

57 AMEX

11 Capital One Bank

121 Citibank, N.A.

86 Discover Bank

4 Midland Funding, LLC

Of the 81 total AAA consumer claims filed in Q1 of 2014...

2 Citibank, N.A.

2 Discover Bank

2 Capital One Bank (USA), N.A.

6 AMEX

 

Even if, as appears to be the case, the AAA is handling debt disputes (perhaps only ones filed by consumers IDK) the applicable contract arbitration terms will guide as to whether the consumer can compel arbitration from a small claim venue. If available, AAA may still be desirable even if JAM$ is preferable.

 

As for the SOL it appears to be 10 years:

http://research.lawyers.com/rhode-island/rhode-island-statutes-of-limitations.html

http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html

Looks like it has been 10 years for some time:

http://www.vedderprice.com/files/Publication/e1ad17ad-3cc7-4c51-9d94-09145f4da91f/Presentation/PublicationAttachment/d6b692fb-94a0-47b4-979f-c7b3f0a2c950/c20de91d-c385-42d3-9865-7453c10832b6_document.pdf

 

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MIDLAND FUNDING Potentially Negative

Closed

T800-825-8131

More Account Details

Account Name MIDLAND FUNDING

Account # XXXXXXXXXX

Account Type Debt Purchase

Balance $1,990.00

Date Opened 4/1/2012

ITS ON MY EXPERIAN CREDIT REPORT

CHAPTER 19-14.9

Rhode Island Fair Debt Collection Practices Act

SECTION 19-14.9-8

(k) Reporting to a consumer reporting agency on its transactions or experiences with a consumer in the debt collector's name. However, a debt collector may, with the express written authorization of the creditor, report to a consumer reporting agency in the creditor's name.

So this means Chase gave the permission to report to Experian? And why does it say closed if they're suing me....I'm so confused

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I WON, I WON, I WON, I WON, I WON, I WON, I WON, I WON, I WON, I WON, I WON, I WON, I WON,

They called us all into one courtroom with a judge. She read through ALL the cases and they where dispersed to various other courtrooms. Mine was 4B.

I met with the para legal in the hallway. I showed her my answer and requested to see their Bill of Sale. etc. She went over to the attorney, he handed her my file. She came back and said "this is what we have" and it was all the documents they'd sent me previously. I re-iterated what I was requesting. She stated they didn't have it, I stated I wanted a trial.

We all go into the courtroom. Everyone made a deal for payments. People who didn't have any money etc had their cases dismissed- but with the verified plan to re-file in a couple months. I was the last person called- as the only "request for trial". I went before the judge. Attorney stated "Defendant is requesting documents that we are not in possession of, therefore we will be dismissing this case"

Judge says "GOOD JOB young lady!!!". He went on to state that "the case will be dismissed, but if they obtain all the documents you requested, they will be able to re-file if they should choose to". I asked him to dismiss with prejudice. He said because the case is lacking evidence that CAN be obtained, he can't rule that way. He asked what I do, I said "I'm a social worker". Judge says "well you should be a lawyer! You did a great job!". Then CASE DISMISSED.

Attorney spoke with me in the hallway and stated that he is recommending to Midland that they drop this case and will pursue no further legal action against me.

Hope this is true! I didn't even need the Trial Brief I'd prepared or any of the documents, case law, legal statutes. Once they saw what I wanted, they went away.

WHOOOOO HOOOOOO this trial has been stressing me out for months. Now it's over. Let's hope he keeps his word re: no further legal action against me

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