farmgirl2013

I BEAT Midland at trial in Alabama!!!!!!

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I WON!!!!!!!

 

They sued for breach of contract and account stated.

 

Today, after 2 continuances, a motion to compel (that was ignored) and a lot of stress on my part I had my day in court. 

 

I was able to get all of Midland's evidence thrown out.  This included bills of sale and affidavits from the OC and from the first purchaser and an affidavit from Midland on the alleged debt.  Also thrown out were copies of the alleged account's statements, and 2 "pre-legal reminders" from Midland. 

 

The judge actually stopped me when I brought up Rule 201 Judicial Notice of Adjudicative Facts (I was going to bring up some of the class actions against Midland for robo-signing and using false affidavits.  He then told me that he was not going to allow their evidence and since the rules of evidence are strict in district court, I did not need to continue as he was making a judgment in my favor.  I asked if this was with or without prejudice and the judge informed me that per the law they have 14 days to refile.  He then said but I don't think they will.  LOL

 

Thanks to all on here that answered my prior posts.  I also found "Defending Junk Debt Buyer Lawsuits" by Peter A. Holland invaluable in coming up with defenses and objections. 
I do have to say that now I really understand why everyone recommends certified mail with return receipts.  The attorney actually said they didn't receive anything that I sent until they got the compel order.  Ya right. 

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Did you at anytime have to submit an opposition to summary judgment?  I would love if you could share that.

 

Pickles

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Did you at anytime have to submit an opposition to summary judgment?  I would love if you could share that.

 

Pickles

 

No.  They did not file summary judgment.  Sorry

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Congrats!!! farmgirl2013, I have a case coming up in few days in Georgia and will like to know how you were able to get the judge to throw the evidence out. I pretty much have the same evidence like yours to try to get the judge to throw them out if my case get to trial. congrats again.

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Kobe71, I'd be glad to let you know.  The first documents they introduced were the alleged credit card statements.  Because I was a bit nervous and didn't know if I should interrupt I didn't say anything although the judge didn't really look at them anyway.

 

The next thing the lawyer introduced was the OC bills of sale to the first debt buyer "Thunderbolt Holdings" and a affidavit from Citibank.  The bill of sale stated "a pool of accounts", no specific names and the file names were redacted.  The affidavit also stated a pool of accounts.  At that point I asked if I should object then (the judge gave direction before anything started and let everyone know that he would help them with knowing when it was their turn).  I objected stating that the bill of sale and affidavit were not relevant as they did now specify my name of the alleged account.

 

Immediately, the lawyer introduced a bill of sale and affidavit from Thunderbolt to Midland also without specific info and including redacted info.  Included was a separate page that at the bottom stated it was printed by Midland from files received from Thunderbolt and at the top had exhibit A written by hand.  This page had my name, address, alleged account number and last 4 of SS# among other things.  The attorney stated that this page was printed from the redacted info.  I objected to the bill of sale and affidavit because they did not specify anything.  I also objected to exhibit A because it was not referenced in the affidavit or bill of sale.  The judge took his time reading those documents and asked the attorney if he was aware that the references weren't there.  Lawyer stated yes he was.

 

The lawyer then introduced the final affidavit from a "legal specialist" at Midland that stated he had personal knowledge, etc, etc, etc.  This affidavit did mention my name and the alleged account.  To this I objected  and quoted case law (or tried to) and said that "All statements on an affidavit must be made on first hand factual knowledge and clearly the legal specialist was not at the Citibank or Thunderbolt sales.  The judge say okay, that's basically double hearsay.  At this time the judge said he was sustaining my objection and not allowing anything in.

 

Finally, the lawyer introduced the 2 "pre-legal" reminders which were their basis for account stated.  These had been supposedly mailed to me previously.  I was asked if I'd seen them and I said yes when the attorney gave them to me the last time we were here but not before then.  I objected to them and again stated case law from Alabama's supreme court that a creditor had not proven a rendering of the statement of account when they had no testimony regarding their mailing practices.  Additionally, I brought up that account stated must have "a meeting of the minds" regarding the amount owed and since these 2 papers, sent 1 month apart had different amounts, how could we have had a meeting of the minds. The judge asked the lawyer if he had an affidavit for this evidence, which he didn't.  He also returned this to the attorney along with the account statements. 

 

The judge asked if the lawyer had anything else and if I had anything to add.  I still wasn't sure how this was going, though I was hopeful but I'd read about this type of thing happening and then the lawyer asking for a summary judgment.  So I said yes, rule 201 Judicial Notice of Adjudicative Facts allows me to introduce facts that cannot be reasonably disputed.  I started rattling off class action suits against Midland which they'd lost.  The judge stopped me and said he was going to make a judgment in my favor.

 

 

I have to attribute part of my success on having a judge that was tolerant and not a stickler for precise legal jargon as long as what was said was backed by law. 

 

Be prepared.  I got a binder and had my information separated by tabs for easy access.  Read up on the rules of evidence in GA and rules of civil procedure, I printed out some of the rules and highlighted the relevant parts.  Pay particular attention to whether each rule is applicable to the court you will be in.  In AL, many civil procedure rules aren't used in district court but it doesn't state it until the very end of the rule, some of which are very lengthy.  Search for relevant case law, you can use google scholar.  It's a bit intimidating and nerve racking but do your homework so that you feel prepared.

 

Good luck!

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I forgot to mention that the lawyer complimented me on my thoroughness after the ruling.  He ran up to me a few minutes later, outside the courtroom and asked where I worked.  I told him (I work for a large home improvement retailer).  He said Really?  You should work for an attorney.  :ROFLMAO2:

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