GinnyCoonrod

Help Midland Funding is trying to be really sneaky but I am not sure what they are up to.

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I am posting the paperwork I used to defeat Midland Funding for anyone who might b e able to use it.

I have posted here all the discovery by both Midland Funding and Defendant. Looks like the formatting won't come out right.

If there is a better way to post documents please let me know.

 

 

.

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

MIDLAND FUNDING LLC                 )

                Case No:

   Division:6                       )

 

Plaintiff,                          )

 

vs.                                 )

 

NAME REDACTED                       )

                                    )

        Defendant.                  )

CERTIFICATE OF SERVICE

 

COMES NOW Defendant pro se, and certifies that the following documents were served on the Plaintiff, MIDLAND FUNDING LLC, in the above case by CD-ROM and by depositing same in the U.S. Mail, postage prepaid, in an envelope addressed to: Steven N. Gatzoulis MBE# 58067, 1125 Grand Blvd., Suite 600, Kansas City, , MO 65332, on this ____ day of ________, ____.

[X] Defendant’s First Set of Request for Admissions Directed to Plaintiff, pursuant to Missouri Rule 59.01

[X] Defendant’s First Set of Interrogatories Directed to Plaintiff, pursuant to Missouri Rule 57.01

[X] Defendant’s Request for Production of Documents and Things to Plaintifft.

[X] A CD-ROM containing an electronic copy of each of the foregoing documents in Microsoft Word for Windows format.     

                      

 

 

By:_______________________________

 

                          DEFENDANT

 


 

.

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

 

MIDLAND FUNDING LLC                 )

                                    )

 

Plaintiff,                          )           

 

vs.                                 )

 

NAME REDACTED                       )

                                    )

        Defendant.                  )

 

DEFENDANT’S'S FIRST SET OF REQUEST FOR ADMISSIONS

DIRECTED TO PLAINTIFF MIDLAND FUNDING LLC

 

A FAILURE TO TIMELY RESPOND TO REQUESTS FOR ADMISSIONS IN COMPLIANCE WITH RULE 59.01 SHALL RESULT IN EACH MATTER BEING ADMITTED BY YOU AND NOT SUBJECT TO FURTHER DISPUTE.

COMES NOW Defendant, pro se, and requests Plaintiff, MIDLAND FUNDING LLC, to admit the following matters of fact, as required by Missouri Supreme Court Rule 59.01. The answers to these Requests for Admission should be signed by the person making them, and a copy of the answers should be served on Defendant no later than thirty (30) days subsequent to the service of these Requests for Admission.

DEFINITIONS

The following definitions are to be used in responding to the following Request for Admissions.

A. "Plaintiff," means MIDLAND FUNDING LLC, or any agent, employee, officer, director, or any other person acting on its behalf.

B. "Defendant" means, ------ an individual.

C. "The Agreement," means the original Agreement between WASHINGTON MUTUAL BANK and Defendant GENESA HEANEY.

D. "The Principal Balance" means the principal balance due Plaintiff from Defendant under the Agreement as alleged in Plaintiff's petition.

 

REQUEST FOR ADMISSIONS:

 

REQUEST 1. That Plaintiff did not provide any goods or services to The Defendant.

 

REQUEST 2. That Plaintiff is not the Original Creditor on the account at issue.

 

REQUEST 3.  That Plaintiff did not enter into any contract with The Defendant

 

REQUEST 4.  That Plaintiff obtained rights to the account at issue through an assignment.

 

REQUEST 5.  That no employee, agent, or representative of Plaintiff is a custodian of records for the Original Creditor on the account at issue.

 

REQUEST 6.  That Plaintiff is not a bank or financial institution.

 

REQUEST 7.  That The Defendant is a consumer within the meaning of 15 USC § 1692a(3).

 

REQUEST 8.  That Plaintiff is a debt collector within the meaning of 15 USC § 1692a(6).

 

REQUEST 9.  That no employee, agent, or representative of Plaintiff has personal knowledge of Original Creditor's record keeping of any records pertaining to The Defendant.

 

REQUEST 10.  That the Original Creditor sold or assigned the debt to you with no warranties or representations as to the validity of the debt.

 

REQUEST 11.  That the document attached hereto as "Statement Of account" attached to affidavit was not created by the Original Creditor.

 

REQUEST 12.  That the document attached hereto as "Statement Of account" attached to affidavit is not an original exhibit to the Bill of Sale.

 

 

By:_______________________________

  

                       DEFENDANT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

 

MIDLAND FUNDING LLC                 )

                                    )

Plaintiff,                          )

                                    ) 

vs.                                 )

                                    )

DEFENDANT                           )

                                    )

        Defendant.                  )

 

DEFENDANT'S FIRST SET OF INTERROGATORIES DIRECTED TO

PLAINTIFF, MIDLAND FUNDING LLC

 

COMES NOW Defendant, pro se, and pursuant to Missouri Supreme Court rule 57.01 propound the following Interrogatories to Plaintiff, MIDLAND FUNDING LLC, to be answered  separately in writing and under oath. The answers to these Interrogatories should be signed by the person making them, and a copy of the answers should be served on Defendant (30) days subsequent to the service of these Interrogatories.

 

DEFINITIONS

 

1. "Plaintiff", or "you" or "your" or "yours" shall refer to and include Plaintiff MIDLAND FUNDING LLC, as well as agents, servants, employees, associates, investigators, attorneys, representatives, shareholders, directors, officers and all others who may have obtained information for or on behalf of those named above.

 

2. "Identify" or "state the identity of":

 

2.1. When used in reference to a natural person means: that person's full name, present or last known business and residence address, present or last known business and residence telephone number, present or last known occupation, employer, and position and that person's occupation or position during the time relevant to the particular interrogatory.

 

2.2. When used in reference to an entity means: its full and complete name, its type of entity (i.e., corporation, partnership, unincorporated association, trade name, etc.), the location of its principal place of business, its mailing address, and its telephone number.

 

2.3. When used in reference to a document means: a description of the type of document, the identity of the person or persons who authored, prepared, signed, and received the document, the date, title, and general description of the subject matter of the document, present location or custodian of the original and each copy of the document, the identity of any persons who can identify the document, and if a privilege is claimed, the specific basis for such claim, in addition to the information set forth above.

 

3. The word "document" is used herein in its broader sense to mean every book, document or other tangible thing, including without limitation the following items, whether printed, typed, recorded, photographed, filmed or reproduced by any process, namely: agreements, communications, letters, memoranda, magnetic tapes, computer readable material, business records, notes, reports, photographs, and/or summaries of investigations, drawings, corporate records, desk calendars, appointment books, and any other information containing papers, writings or physical things.

 

4. The word "describe", used in connection with any act, occurrence, or physical facts, shall include but not be limited to the following: the identity of every person known to have been involved in or to have witnessed the act or occurrence, the date or dates of any such act or occurrence, and a description of any documents, records, or things documenting or involved in such act, occurrence, or fact.

 

5. The word “Incident” shall mean the facts and circumstances set forth in the Complaint giving rise to this action.

 

These interrogatories, and answers hereto, are to include and are to be based upon, information in the possession of or gathered by you, your agents, servants, representatives, investigators, attorneys, and all other persons who have investigated or gathered information at your request or on your behalf.

 

Objections to all or any portion of an interrogatory shall be set forth with specificity sufficient to allow the party propounding these interrogatories to understand the exact scope of and reason for the objection. Where an objection relates to only a portion of the information requested in an interrogatory, all other information not within the scope of said objection shall be provided.

 

COMES NOW, Defendant in the above styled action, and serves these Interrogatories.

 

 

Interrogatories:

 

 Interrogatories DIRECTED TO AFFIANT:

 

1. Please explain and define the term “Authorized Agent” Please identify the scope of the authority and responsibilities conveyed by this title?

 

2. Please identify your function as the person signing the documents, and identify the basis of your personal knowledge. Do you use any other titles in the course of signing documents? If yes please identify the titles and purpose of using multiple titles.

 

3. Please identify your employer of record as evidenced by the entity that issues your paycheck.

 

4. Please explain who has authorized you to make the affidavit and who has requested the affidavit that was provided and the dates of those requests.

 

5. Do you personally enter information into the fields in the software to generate the affidavit or do you simply pick up the pre printed affidavits to sign. Please explain the process in detail.

 

6. How many affidavits do you prepare and sign in a normal workday?

 

7.How many Affidavits did you sign on Month Date Year

 

8. Do you have authorized access to original documents within MIDLAND FUNDING LLC? Identify the person(s) who conferred that authorization upon you.

 

9. Did you as the Affiant physically retrieve the records which you have provided as evidence?

 

10. Please explain how you access documents used in verification and preparation of the affidavit.

 

11. For each agreement you contend was offered to and accepted by the defendant, including but not limited to the original account agreement, any amendment to the agreement, any notice of a change in any term of the agreement, or any schedule of interest rates or fees applicable to the account, explain how the agreement was offered to and accepted by the defendant.

 

12. Explain how each document containing the terms of any agreement for the account or reflecting any amount due on the account was delivered to the defendant, including but not limited to, the original account agreement, any amendment to the agreement, any notice of a change in a term of the agreement, any schedule of interest rates or fees applicable to the account, any credit card issued in connection with the account, and any statement of payments, charges, fees or interest for the account.

 

13. For each document you have produced that you contend applies to the account that does not contain the defendant’s identifying information, such as the defendant’s name, social security number, account number, or signature, and that was created by someone other than you, identify the source of the document by stating the date you obtained the document and identifying the person from whom you obtained the document.

 

14. Please identify what documents were provided directly by you in addition to the affidavit and the dates those documents were provided. Did you attach the aforementioned documents to the affidavit?

 

15. Please identify how the affiant came to know the facts included in the affidavit, how the affiant knows the documents attached to the affidavit are authentic and/or admissible under the business records rule.

 

16. Please explain the process and procedure to access the records used to verify the accounts you provide affidavits for. Where are these documents kept in relation to the location of your office? Are files brought to you or do you have to retrieve them yourself?

 

       .                                             

 

By:_______________________________

  

                            DEFENDANT

 

 

 

 

 

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

 

MIDLAND FUNDING LLC                 )

                                    )

Plaintiff,                          )

                                    ) 

vs.                                 )

                                    )

DEFENDANT                           )                       

                                    )

        Defendant.                  )

 

REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO

PLAINTIFF MIDLAND FUNDING LLC

 

COMES NOW Defendant,  pro se, and pursuant to Missouri Supreme Court 58.01, requests Plaintiff, MIDLAND FUNDING LLC to produce and permit Defendant pro se to inspect and photocopy, within thirty (30) days after the date of service, the documents described herein.                                                                       

DEFINITIONS

The following definitions are to be used in responding to the following Interrogatories.

A.           "Plaintiff," means MIDLAND FUNDING LLC, or any agent, employee, officer, director, or any other person acting on its behalf.

B. "Defendant" means, --------- an individual.

C. "Agreement," means the Credit Card Agreement.

D. "Balance Due," means the amount Plaintiff alleges in its Petition that Defendant owes on the credit card agreement.

E. "Document," means all original writings of any nature or all copies thereof, regardless of whether or not such copies differ in any way from the originals, in your possession or control, wherever located, and includes, but is not limited to, contracts, agreements, records, memoranda, handwritten notes, working papers, letters of correspondence, invoices, statements, purchase orders, bills of lading, minutes and reports.

                    

DOCUMENTS TO BE PRODUCED

 

1.           All documents evidencing any communication between WASHINGTON MUTUAL BANK and Defendant in connection with the Agreement described in Plaintiff’s Petition, including letters and correspondence.

 

2.           All documents evidencing the negotiations for and the execution of the Agreement with WASHINGTON MUTUAL BANK and/or Plaintiff MIDLAND FUNDING LLC.

 

3.           All billings received by Defendant from WASHINGTON MUTUAL BANK and/or Plaintiff for all or any part of Plaintiff’s claim. This request specifically includes, but is not limited to, invoices and statements.

 

4.           All documents which regard and/or refer to any payments made by Defendant under the Agreement. This request specifically includes, but is not limited to, cancelled checks and receipts.

 

5.           All documents which regard and/or refer to the liability of Defendant, ---------, for any amounts due under the Agreement.

 

6.           Any and all correspondence or communications from Defendant to Plaintiff or any collection agencies representing Plaintiff in attempting to collect the account.

 

By:_______________________________

DEFENDANT


 

.

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

MIDLAND FUNDING LLC                 )

                                    )

Plaintiff,                          )

                                    ) 

vs.                                 )

                                    )

NAME REDACTED                       )

                                    )

        Defendant.                  )

CERTIFICATE OF SERVICE

 

COMES NOW Defendant pro se, and certifies that the following documents were served on the Plaintiff, MIDLAND FUNDING LLC, in the above case by CD-ROM and by depositing same in the U.S. Mail, postage prepaid, in an envelope addressed to: Steven N. Gatzoulis MBE# 58067, 1125 Grand Blvd., Suite 600, Kansas City, , MO 65332, on this ____ day of ________, ____.

[X] Defendant’s First Set of Request for Admissions Directed to Plaintiff, pursuant to Missouri Rule 59.01

[X] Defendant’s First Set of Interrogatories Directed to Plaintiff, pursuant to Missouri Rule 57.01

[X] Defendant’s Request for Production of Documents and Things to Plaintifft.

[X] A CD-ROM containing an electronic copy of each of the foregoing documents in Microsoft Word for Windows format.     

                      

 

 

By:_______________________________

 

                          DEFENDANT

 


.

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

MIDLAND FUNDING LLC                               )

                                                                       )

Plaintiff,                                                          ) 

                                                                       ) 

vs.                                                                  )

                                                                       )

DEFENDANT                                                  )

                                                                       )

Defendant.                                                     )

CERTIFICATE OF SERVICE

 

COMES NOW Plaintiff, by its counsel, and certifies that the following documents were served on the Defendant, --------, in the above case by CD-ROM and by depositing same in the U.S. Mail, postage prepaid, in an envelope addressed to: ----------------, on this ____ day of ________, ____.

[X] Plaintiff’s First Set of Request for Admissions Directed to Defendant, pursuant to Missouri Rule 59.01

[X] Plaintiff’s First Set of Interrogatories Directed to Defendant, pursuant to Missouri Rule 57.01

[X] Plaintiff’s Request for Production of Documents and Things to Defendant.

[X] A CD-ROM containing an electronic copy of each of the foregoing documents in Microsoft Word for Windows format.

 

KRAMER & FRANK, P.C.

**/SIGNATURE**/

 

By:_______________________________

STEVE N. GATZOULIS, MBE# 58057

Attorneys for Plaintiff

1125 GRAND BLVD., SUITE 600

KANSAS CITY, MO 64106-2501

(816) 471-0030, ext. 8661

(816) 472-0963 – Fax

Email: 92729118@lawusa.com

HEAGEMID NZ

 

.

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

 

MIDLAND FUNDING LLC                              )

                                                                       )

Plaintiff,                                                         )  

                                                                       ) 

vs.                                                                  )

                                                                       )

DEFENDANT                                                  )

 

 

PLAINTIFF'S FIRST SET OF REQUEST FOR ADMISSIONS

DIRECTED TO DEFENDANT --------

 

A FAILURE TO TIMELY RESPOND TO REQUESTS FOR ADMISSIONS IN COMPLIANCE WITH RULE 59.01 SHALL RESULT IN EACH MATTER BEING ADMITTED BY YOU AND NOT SUBJECT TO FURTHER DISPUTE.

COMES NOW Plaintiff, MIDLAND FUNDING LLC, by and through its undersigned attorneys, and requests Defendant, ---------, to admit the following matters of fact, as required by Missouri Supreme Court Rule 59.01. The answers to these Requests for Admission should be signed by the person making them, and a copy of the answers should be served on counsel for Plaintiff no later than thirty (30) days subsequent to the service of these Requests for Admission.

DEFINITIONS

The following definitions are to be used in responding to the following Request for Admissions.

A. "Plaintiff," means MIDLAND FUNDING LLC, or any agent, employee, officer, director, or any other person acting on its behalf.

B. "Defendant" means, ---------- an individual.

C. "The Agreement," means the original Agreement between WASHINGTON MUTUAL BANK and Defendant ============.

D. "The Principal Balance" means the principal balance due Plaintiff from Defendant under the Agreement as alleged in Plaintiff's petition.

 

REQUEST ONE: That Plaintiff is a legal entity duly organized and existing under and by virtue of law.

ANSWER: ADMITTED

 

REQUEST TWO: That Defendant is a resident of PETTIS County, State of Missouri.

ANSWER: ADMITTED

 

REQUEST THREE: That Defendant entered into an Agreement with WASHINGTON MUTUAL BANK for the extension of credit to Defendant for which Defendant agreed to pay as per the terms of the Agreement.

ANSWER: WITHOUT KNOWLEDGE

 

REQUEST FOUR: Defendant was issued and received a credit card with the last 4 digits of the account number being 7894.

ANSWER: WITHOUT KNOWLEDGE

 

REQUEST FIVE: Defendant incurred charges on the credit card account under the foregoing account number.

ANSWER: WITHOUT KNOWLEDGE

 

REQUEST SIX: WASHINGTON MUTUAL BANK and Plaintiff have performed all of their obligations under the Agreement.

ANSWER: DENIED

 

REQUEST SEVEN: Defendant breached said Agreement by failing to make payments to WASHINGTON MUTUAL BANK and/or Plaintiff as required by the Agreement.

ANSWER: DENIED

 

REQUEST EIGHT: After all payments and credit due and owing Defendant, Defendant remains indebted to Plaintiff on said credit card account in the principal balance of $5723.61 together with interest at 9% per annum from November 06, 2012 and reasonable attorneys fees.

ANSWER: DENIED

 

REQUEST NINE: That the charges made by WASHINGTON MUTUAL BANK for the services it rendered on said account are reasonable.

ANSWER: DENIED

 

REQUEST TEN: That demand for payment was made on Defendant on or before November 06, 2012.

ANSWER: WITHOUT KNOWLEDGE

 

REQUEST ELEVEN: That MIDLAND FUNDING LLC is the current owner of the account.

ANSWER: WITHOUT KNOWLEDGE

 

KRAMER & FRANK, P.C.

**/SIGNATURE**/

 

By:_______________________________

STEVE N. GATZOULIS, MBE# 58057

Attorneys for Plaintiff

1125 GRAND BLVD., SUITE 600

KANSAS CITY, MO 64106-2501

(816) 471-0030, ext. 8661

(816) 472-0963 – Fax

Email: 92729118@lawusa.com

HEAGEMID NZ

 

 

 

AFFIRMATIVE DEFENSES:

 

 

1. Lack Of Standing

 

 

2. Lack of proof for Suit On Account

 

To recover on a suit on account, a plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges. Such evidence consists of proof that: 1) Defendant requested plaintiff to furnish merchandise or services; 2) plaintiff accepted the offer of the defendant by furnishing such merchandise or services; and 3) the charges were reasonable. Citibank South Dakota N.A. v. Whiteley, 149 S.W.3d 599, 601 (Mo.App.S.D.2004) (internal citations omitted). The party bringing a cause of action on account cannot prevail if one or more elements of the cause are not supported by substantial evidence. Id.

 

 

  1. Hearsay

 

Affidavit attached to Plaintiff’’s Complaint is hearsay and therefore inadmissible.

 

CACH LLC v. ASKEW

CACH, LLC, Respondent No. SC 91780.

January 17, 2012

All of the requirements of § 490.680 must be satisfied for a record to be admitted as competent evidence.5 State v. Graham, 641 S.W.2d 102, 106 (Mo. banc 1982). To satisfy these requirements, the records “custodian” or “other qualified witness” has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997). For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967); Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App.1989) (“The business records exception to the hearsay rule applies only to documents generated by the business itself․ Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.”) A custodian of records cannot meet the requirements of § 490.680 by simply serving as “conduit to the flow of records” and not testifying to the mode of preparation of the records in question. C. & W. Asset, 136 S.W.3d at 140.


 

CERTIFICATE OF SERVICE

 

The undersigned certifies that the above documents were served on all parties in the above cause by CD-ROM and by depositing an original in the U.S. Mail, postage prepaid, in an envelope addressed to: --------,, on this___ day of ________, ____.

 

**/SIGNATURE**/

___________________________

 

 

DEFENDANT’S SWORN SIGNATURE

 

STATE OF     )

                      )ss.

COUNTY OF )

 

The below-named person, being duly sworn on his/her oath, states that he/she has read the foregoing requests and the responses given are true to the best of affiant’s knowledge and belief.

 

 

By:________________________________

Affiant

 

The foregoing responses were subscribed and sworn to before me this _____ day of ___________ 20_.

 

 

________________________________

Notary Public

 

My Commission expires:

 

 

 

CERTIFICATE OF MAILING

 

A completed copy of the above and foregoing Defendant’s Responses to Plaintiff’s First Request for Admissions Directed to Defendant -------- was mailed via United States first class mail, postage prepaid, this _____ day of _________,20_, to:

 

STEVE N. GATZOULIS, MBE# 58057

KRAMER & FRANK, P.C.

1125 GRAND BLVD., SUITE 600

KANSAS CITY, MO 64106-2501

ATTORNEYS FOR PLAINTIFF

 

_______________________________

Defendant

 

 

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

 

MIDLAND FUNDING LLC )

                                         )

Plaintiff                            ) 

                                         )

vs.                                    )

                                         )

DEFENDANT                    )

 

 

PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO

DEFENDANT --------

 

COMES NOW Plaintiff, by and through its undersigned attorney, and pursuant to Missouri Supreme Court rule 57.01 propound the following Interrogatories to Defendant, --------, to be answered separately in writing and under oath. The answers to these Interrogatories should be signed by the person making them, and a copy of the answers should be served on counsel for Plaintiff no later than thirty (30) days subsequent to the service of these Interrogatories.

 

DEFINITIONS

The following definitions are to be used in responding to the following Request for Admissions.

A. "Plaintiff," means MIDLAND FUNDING LLC, or any agent, employee, officer, director, or any other person acting on its behalf.

B. "Defendant" means, ----------- an individual.

C. "The Agreement," means the original Agreement between WASHINGTON MUTUAL BANK and Defendant ----------.

D. "The Principal Balance" means the principal balance due Plaintiff from Defendant under the Agreement as alleged in Plaintiff's petition.

 

INTERROGATORY ONE: If Request One is not admitted, state fully and completely the facts upon which Defendant’s denial of Request One is based.

 

INTERROGATORY TWO: If Request Two is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Two is based.

 

INTERROGATORY THREE: If Request Three is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Three is based.

ANSWER: PLAINTIFF MIDLAND FUNDING LLC HAS OFFERED NO PROOF OF CONTRACT WITH WASHINGTON MUTUAL BANK, NOR HAS PROVIDED ANY DOCUMENTED PROOF OF ANY TERMS OF A CONTRACT WITH WASHINGTON MUTUAL BANK.

 

INTERROGATORY FOUR: If Request Four is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Four is based.

ANSWER: PLAINTIFF DOES NOT SPECIFY WHO THE CREDIT CARD ACCOUNT WITH AND THE TERM “CREDIT CARD” IS NOT DEFINED IN PLAINTIFF’S DEFINITIONS.

 

INTERROGATORY FIVE: If Request Five is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Five is based, including identification of disputed charges by the account number, transaction description, reference number, amount, date, and reason for dispute. Attach sheet if additional space if needed.

ANSWER: PLAINTIFF DOES NOT SPECIFY WHO THE CREDIT CARD ACCOUNT WITH AND THE TERM “CREDIT CARD” IS NOT DEFINED IN PLAINTIFF’S DEFINITIONS.

 

INTERROGATORY SIX: If Request Six is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Six is based.

ANSWER: PLAINTIFF HAS NOT PROVIDED ANY PROOF THAT WASHINGTON MUTUAL BANK AND MIDLAND FUNDING HAVE PERFORMED ANY OBLIGATIONS UNDER ANY AGREEMENT. FURTHER, DEFENDANT DENIES HAVING ANY PRIOR RELATIONSHIP WITH MIDLAND FUNDING LLC THAT WOULD OBLIGATE DEFENDANT IN ANY WAY.

 

INTERROGATORY SEVEN: If Request Seven is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Seven is based.

ANSWER: PLAINTIFF HAS NOT PROVIDED ANY PROOF THAT DEFENDANT WAS EVER INDEBTED TO WASHINGTON MUTUAL BANK OR MIDLAND FUNDING. FURTHER PLAINTIFF HAS PRODUCED NO AGREEMENT THAT REQUIRES DEFENDANT TO DO ANYTHING. PLAINTIFF MIDLANDING LLC HAS NOT SHOWN PROOF THAT MIDLAND FUNDING LLC EVEN OWNS THE DEBT

 

INTERROGATORY EIGHT: If Request Eight is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Eight is based.

ANSWER: PLAINTIFF HAS FAILED TO ESTABLISH STANDING IN THE PRESENT CASE AND HAS ESTABLISHED NO PRIOR RELATIONSHIP WITH DEFENDANT WHICH IS REQUIRED IN ORDER TO ESTABLISH STANDING TO SUE. DEFENDANT IS NOT INDEBTED TO PLAINTIFF IN ANY WAY.

 

INTERROGATORY NINE: If Request Nine is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Nine is based.

ANSWER: PLAINTIFF HAS FAILED TO PROVIDE DOCUMENTED EVIDENCE THAT SAID AMOUNTS ARE CORRECT OR REASONABLE.

 

INTERROGATORY TEN: If Request Ten is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Ten is based.

ANSWER: PLAINTIFF HAS FAILED TO PROVIDE PROOF THAT ANY DEMAND FOR PAYMENT WAS MADE.

 

INTERROGATORY ELEVEN: If Request Eleven is not admitted, state fully and completely the facts upon which Defendant’s denial of Request Eleven is based.

ANSWER: PLAINTIFF MIDLAND FUNDING LLC HAS PROVIDED NO PROOF THAT IT IS THE CURRENT OWNER OF ANY ACCOUNT.

 

 

KRAMER & FRANK, P.C.

**/SIGNATURE**/

 

By:_______________________________

STEVE N. GATZOULIS, MBE# 58057

Attorneys for Plaintiff

1125 GRAND BLVD., SUITE 600

KANSAS CITY, MO 64106-2501

(816) 471-0030, ext. 8661

(816) 472-0963 – Fax

Email: 92729118@lawusa.com

HEAGEMID NZ

 

AFFIRMATIVE DEFENSES:

 

 

1. Lack Of Standing

 

 

2. Lack of proof for Suit On Account

 

CACH LLC v. ASKEW

CACH, LLC, Respondent No. SC 91780.

January 17, 2012

To recover on a suit on account, a plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges. Such evidence consists of proof that: 1) Defendant requested plaintiff to furnish merchandise or services; 2) plaintiff accepted the offer of the defendant by furnishing such merchandise or services; and 3) the charges were reasonable. Citibank South Dakota N.A. v. Whiteley, 149 S.W.3d 599, 601 (Mo.App.S.D.2004) (internal citations omitted). The party bringing a cause of action on account cannot prevail if one or more elements of the cause are not supported by substantial evidence. Id.

  1. Hearsay

 

Affidavit attached to Plaintiff’’s Complaint is hearsay and therefore inadmissible.

 

CACH LLC v. ASKEW

CACH, LLC, Respondent No. SC 91780.

January 17, 2012

All of the requirements of § 490.680 must be satisfied for a record to be admitted as competent evidence.5 State v. Graham, 641 S.W.2d 102, 106 (Mo. banc 1982). To satisfy these requirements, the records “custodian” or “other qualified witness” has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997). For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967); Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App.1989) (“The business records exception to the hearsay rule applies only to documents generated by the business itself․ Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.”) A custodian of records cannot meet the requirements of § 490.680 by simply serving as “conduit to the flow of records” and not testifying to the mode of preparation of the records in question. C. & W. Asset, 136 S.W.3d at 140.


 


 


 


 


 

 

 

 

CERTIFICATE OF SERVICE

 

The undersigned certifies that the above documents were served on all parties in the above cause by CD-ROM and by depositing an original in the U.S. Mail, postage prepaid, in an envelope addressed to: DEFENDANT, on this___ day of ________, ____.

 

 

**/SIGNATURE**/

___________________________

 

 

 

DEFENDANT’S SWORN SIGNATURE

 

STATE OF )

)ss.

COUNTY OF )

 

The below-named person, being duly sworn on his/her oath, states that he/she has read the foregoing requests and the responses given are true to the best of affiant’s knowledge and belief.

 

 

By:________________________________

Affiant

 

The foregoing responses were subscribed and sworn to before me this _____ day of ___________ 20_.

 

 

________________________________

Notary Public

 

My Commission expires:

 

 

 

CERTIFICATE OF MAILING

 

A completed copy of the above and foregoing Defendant’s Answers to Plaintiff’s First Interrogatories Directed to Defendant -------- was mailed via United States first class mail, postage prepaid, this _____ day of _________,20_, to:

 

STEVE N. GATZOULIS, MBE# 58057

KRAMER & FRANK, P.C.

1125 GRAND BLVD., SUITE 600

KANSAS CITY, MO 64106-2501

ATTORNEYS FOR PLAINTIFF

 

_______________________________

Defendant

 

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

 

MIDLAND FUNDING LLC                        )

                                                                 )

Plaintiff,                                                   ) 

                                                                 )

vs.                                                            )

                                                                 )

DEFENDANT                                            )

 

 

REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO

DEFENDANT --------

 

COMES NOW Plaintiff, MIDLAND FUNDING LLC, by and through its undersigned attorneys, and pursuant to Missouri Supreme Court 58.01, requests Defendant, ---------- to produce and permit Plaintiff and its counsel to inspect and photocopy, within thirty (30) days after the date of service, at the offices of Plaintiff’s counsel, the documents described herein.

DEFINITIONS

The following definitions are to be used in responding to the following Interrogatories.

  1. "Plaintiff," means MIDLAND FUNDING LLC, or any agent, employee, officer, director, or any other person acting on its behalf.

B. "Defendant" means, ---------- an individual.

C. "Agreement," means the Credit Card Agreement.

D. "Balance Due," means the amount Plaintiff alleges in its Petition that Defendant owes on the credit card agreement.

E. "Document," means all original writings of any nature or all copies thereof, regardless of whether or not such copies differ in any way from the originals, in your possession or control, wherever located, and includes, but is not limited to, contracts, agreements, records, memoranda, handwritten notes, working papers, letters of correspondence, invoices, statements, purchase orders, bills of lading, minutes and reports.

DOCUMENTS TO BE PRODUCED

  1. All documents evidencing any communication between WASHINGTON MUTUAL BANK and Defendant in connection with the Agreement described in Plaintiff’s Petition, including letters and correspondence.

ANSWER: NONE AVAILABLE

  1. All documents evidencing the negotiations for and the execution of the Agreement with WASHINGTON MUTUAL BANK.

ANSWER: NONE AVAILABLE

  1. All billings received by Defendant from WASHINGTON MUTUAL BANK and/or Plaintiff for all or any part Plaintiff’s claim. This request specifically includes, but is not limited to, invoices and statements.

ANSWER: NONE AVAILABLE

  1. All documents which regard and/or refer to any payments made by Defendant under the Agreement. This request specifically includes, but is not limited to, cancelled checks and receipts.

ANSWER: NONE AVAILABLE

  1. All documents which regard and/or refer to any failure by Plaintiff to perform its obligations under the Agreement.

ANSWER: NONE AVAILABLE

  1. Any documents which regard and/or refer to any dispute or complaint by Defendant concerning Plaintiff’s performance under the Agreement.

  2. Any documents which regard and/or refer to any credit or offset claimed by Defendant against the balance due.

ANSWER: NONE AVAILABLE

  1. All documents which regard and/or refer to the liability of Defendant, GENESA HEANEY, for any amounts due under the Agreement.

ANSWER: NONE AVAILABLE

  1. All documents identified by Defendant in its answers to Plaintiff’s Interrogatories served herewith.

ANSWER: NONE AVAILABLE

  1. Any and all correspondence or communications from Defendant to Plaintiff or any collection agencies representing Plaintiff in attempting to collect the account.

ANSWER: NONE AVAILABLE

 

AFFIRMATIVE DEFENSES:

 

1. Lack Of Standing

 

2. Lack of proof for Suit On Account

 

To recover on a suit on account, a plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges. Such evidence consists of proof that: 1) Defendant requested plaintiff to furnish merchandise or services; 2) plaintiff accepted the offer of the defendant by furnishing such merchandise or services; and 3) the charges were reasonable. Citibank South Dakota N.A. v. Whiteley, 149 S.W.3d 599, 601 (Mo.App.S.D.2004) (internal citations omitted). The party bringing a cause of action on account cannot prevail if one or more elements of the cause are not supported by substantial evidence. Id.

 

3. Hearsay:

 

Affidavit attached to Plaintiff’’s Complaint is hearsay and therefore inadmissible.

CACH LLC v. ASKEW

CACH, LLC, Respondent No. SC 91780.

January 17, 2012

All of the requirements of § 490.680 must be satisfied for a record to be admitted as competent evidence.5 State v. Graham, 641 S.W.2d 102, 106 (Mo. banc 1982). To satisfy these requirements, the records “custodian” or “other qualified witness” has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997). For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967); Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App.1989) (“The business records exception to the hearsay rule applies only to documents generated by the business itself․ Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.”) A custodian of records cannot meet the requirements of § 490.680 by simply serving as “conduit to the flow of records” and not testifying to the mode of preparation of the records in question. C. & W. Asset, 136 S.W.3d at 140.

 

 

 

 

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

DIVISION 6

MIDLAND FUNDING LLC                 )

                                    )

Plaintiff,               ) Case No:

 ) Division:6

vs.                                   )

 )

defendant                       )

                                    )

        Defendant.                  )

CERTIFICATE OF SERVICE

 

COMES NOW Defendant, pro se, and certifies that the following documents were served on the Plaintiff, MIDLAND FUNDING, LLC,  in the above case by CD-ROM and by depositing same in the U.S. Mail, postage prepaid, in an envelope addressed to: STEVE N. GATZOULIS, MBE# 58057,KRAMER & FRANK Attorneys for Plaintiff, 1125 GRAND BLVD., SUITE 600 KANSAS CITY, MO 64106-2501,  on this ____ day of ________,2014.

 

[X] Defendant’s MOTION FOR SUMMARY JUDGMENT

     [X]A CD-ROM containing an electronic copy of each of the foregoing documents in Microsoft Word for Windows format.    

 

 

DEFENDANT’S SWORN SIGNATURE

 

STATE OF   MISSOURI                )

                                   )ss.

COUNTY OF  PETTIS                  )

 

                                   By:________________________________

                                      Affiant

 

     The foregoing statements were subscribed and sworn to

 

me this _____ day of ___________ 20____.

 

 

                                                        ________________________________

Notary Public

 

My Commission expires  _________________

 

 

 

 

 

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

 

(NOTE):  I was pretty sure we would not prevail on Summary Judgment, but it was a delaying tactic on our part. Plus, you never know, you might get lucky. It was definitely worth the time and effort

 

 

 

IN THE CIRCUIT COURT OF PETTIS COUNTY, MISSOURI

ASSOCIATE CIRCUIT DIVISION

 

 

 

 

MIDLAND FUNDING, LLC                                            )

                                                                                      )

Plaintiff,                                                                         )

                                                                                      )           

vs.                                                                                  )            

                                                                                      )           

NAME  REDACTED                                                       )

                                                                                      )

        Defendant.                                                               )

 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

Defendant, pursuant to rule 74.04( B) of the Missouri Rules of Civil Procedure, submits the following Motion For Summary Judgment, and through this memorandum of law states why summary judgment should be granted in Defendant’s favor.

 

AUTHORITIES:

Missouri Court Of Appeals, Western District has ruled that “for summary judgment to be proper, the circuit court must determine that the parties are not disputing any issue of material fact and that the party seeking summary judgment is entitled to judgment as a matter of law. Rule 74.04©(6); ITT Commercial Finance, 854 S.W.2d at 377.” 

 

STATEMENT OF UNCONTROVERTED FACTS

1.           Plaintiff is a national banking association, duly organized and existing under and by virtue of law.

2.           Defendant is a resident of Pettis County, State of Missouri.

 

3. Plaintiff, by its own admission states in discovery that the affidavit submitted with its complaint was merely for the purpose of  gaining a default judgment against defendant Genesa Heaney (See Plaintiff’s Response To Defendant’s Interrogatories, #4, attached.)

In Plaintiff’s response, plaintiff’s counsel stated  that the affiant “testified only to a review of the records. However affiant JESSICA TRINKLEIN swore under penalty of perjury, that the statements made therein were true and correct, and were made based upon “personal knowledge of those accounts and records maintained on plaintiff’s behalf.”. (Affidavit of JESSICA TRINKLEIN attached.)

 

4. Plaintiff by its own admission through discovery admits that its records are hearsay and not admissible as evidence. (See Plaintiff’s Response To Defendant’s Interrogatories, attached.)

 

5. Plaintiff by its own admission, is a debt collector, and not the Original creditor in the alleged debt, as evidenced by the footnotes in its Petition. (Page 1 of Petition attached.)

 

In support of its Motion, Defendant states as follows:

“Before a document may be received in evidence, it must meet a number of foundational requirements including: relevancy, authentication, the best evidence rule, and hearsay.” Hadlock v. Dir. of Revenue, 860 S.W.2d 335, 337 (Mo. Banc 1993).

All of the requirements of § 490.680 must be satisfied for a record to be admitted as competent evidence.5 State v. Graham, 641 S.W.2d 102, 106 (Mo. banc 1982). To satisfy these requirements, the records “custodian” or “other qualified witness” has to testify to the record's identity, mode of preparation, and that it was made in the regular course of business, at or near the time of the event that it records. State v. Sutherland, 939 S.W.2d 373, 377 (Mo. banc 1997). For that reason, a document that is prepared by one business cannot qualify for the business records exception merely based on another business's records custodian testifying that it appears in the files of the business that did not create the record. State v. Anderson, 413 S.W.2d 161, 165 (Mo.1967); Zundel v. Bommarito, 778 S.W.2d 954, 958 (Mo.App.1989) (“The business records exception to the hearsay rule applies only to documents generated by the business itself. Where the status of the evidence indicates it was prepared elsewhere and was merely received and held in a file but was not made in the ordinary course of the holder's business it is inadmissible and not within a business record exception to the hearsay rule under § 490.680, RSMo 1986.”) A custodian of records cannot meet the requirements of § 490.680 by simply serving as “conduit to the flow of records” and not testifying to the mode of preparation of the records in question. C. & W. Asset, 136 S.W.3d at 140. -

 

ISSUE OF STANDING

Courts have a duty to determine if a party has standing prior to addressing the substantive issues of the case. Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc 2002). For this reason, standing cannot be waived. Id.

In cases that involve a party attempting to recover on an account owed to some other party, “proof of an assignment of the account is essential to a recovery.” Walker, 208 S.W.3d at 298. The party must show clearly through a valid assignment it is the rightful owner of the account at issue. C. & W. Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 140 (Mo.App.2004).

 

COUNT 1 – FOR MONEY LOANED

Plaintiff has failed to offer any substantive proof that it loaned any money to defendant, and that defendant is obligated in any way to Plaintiff, MIDLAND FUNDING, LLC for any alleged money loaned to defendant.

Plaintiff has offered no signed instrument that shows that defendant entered into an agreement with plaintiff for money loaned.

 

ACTION ON ACCOUNT

Missouri Court Of Appeals, Southern District, Division One, Ruled in CITIBANK (S.D.) N.A., Respondent v. Bethany J. MILLER, Appellant.No.27690.- May 17, 2007, that:

An action on account is an action in contract for each purchase transaction. To recover on an action on account, the plaintiff must show: offer; acceptance; consideration between the parties; correctness of the account; and reasonableness of the charges. Such evidence includes proof that: defendant requested [Citibank] to furnish merchandise or services; plaintiff accepted the offer of defendant by furnishing such merchandise or services; and the charges were reasonable. Citibank v. Whiteley, 149 S.W.3d 599, 601 (Mo.App. S.D.2004).

In findings included as part of its judgment, the trial court found “[Citibank] brought this action as a suit on account”; that “[r]easonableness of the charges is an element of an action on account”; and “[Citibank] failed to meet its burden of proof on this element of an action on account.”

A party bringing a cause of action cannot prevail if one or more elements of the cause of action are not supported by substantial evidence. Reasonableness of the charges is an element of an action on account. Id. Defendant asserts that [Citibank] failed to prove the reasonableness of the charges by substantial evidence. Therefore, defendant argues that her motion for judgment should be granted because [Citibank] is not entitled to relief as a matter of law. The court finds that plaintiff failed to meet its burden of proof on this element of an action on account.

 

Missouri Court of Appeals,Eastern District,Division One, in

CACH, LLC, v. Jon J. ASKEW, No. ED 94814. March 29, 2011

Ruled:

 

Judgment on Theory of Suit on Account

Askew asserts there was insufficient evidence to support judgment for CACH on a theory of Suit on Account/Action on Account. Specifically he argues there was no evidence in the record about the reasonableness of the underlying charges.

To recover on a suit on account, a plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges. Such evidence consists of proof that: 1) Defendant requested plaintiff to furnish merchandise or services; 2) plaintiff accepted the offer of the defendant by furnishing such merchandise or services; and 3) the charges were reasonable.

Citibank South Dakota N.A. v. Whiteley, 149 S.W.3d 599, 601 (Mo.App.S.D.2004) (internal citations omitted). The party bringing a cause of action on account cannot prevail if one or more elements of the cause are not supported by substantial evidence. Id.

The record here is void of any evidence as to the reasonableness of the individual charges to Askew's account. As it would be nearly impossible for the purchaser of a defaulted credit card account to prove the reasonableness of the underlying charges, an action on account is unlikely to be a viable theory for recovery in such cases.

 

 

WHEREFORE, Defendant prays the Court enter Summary Judgment against the Plaintiff  or in the alternative, requests that the Court ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted, and for such other and further relief as the Court deems proper.

 Respectfully submitted,

                                                                               

                                                                         Defendant

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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I have won two lawsuits so far, one with Capital One as the Plaintiff and this one with Midland Funding.

Both cases were different. Capital One was Breach Of Contract and Midland Funding was Suit On Account and Money Loaned.

 

Breach of contract took 12 months and it was my first time being sued. Every time I appeared before the judge I asked for a continuance, which he granted every time. I had the same law firm in both cases, Kramer & Frank who are absolute snakes of the lowest order. They filed a Summary Judgment and when we appeared in court their lawyer said his case "wouldn't fly," so the judge didn't even have to rule on it. They also filed for a new judge, which was granted, but it didn't help them. 

 

On the day before the trial I received a letter in the mail saying they had dismissed the case. Bottom line is that on Breach Of Contract they had to have a signed instrument, which they could not produce.

 

With Midland Funding the Cause Of Action was Suit On Account and Money Loaned. I didn't have any experience with those so I did a lot of research on Appellate Court cases, and fashioned my case on those. In both cases what really helped me was the Appellate Court rulings which established precedence. Citing higher court cases discourages the trial court judge from ruling against you.

 

Good luck with your case.

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Awesome, thank you.

 

going to PM you on a line you may need to redact, that appears to be your name.

 

Totally awesome!  Great work slapping them down and Askew helped I am sure.

 

NB-Yes, G, you definitely need to redact that.

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I have won two lawsuits so far, one with Capital One as the Plaintiff and this one with Midland Funding.

Both cases were different. Capital One was Breach Of Contract and Midland Funding was Suit On Account and Money Loaned.

 

Breach of contract took 12 months and it was my first time being sued. Every time I appeared before the judge I asked for a continuance, which he granted every time. I had the same law firm in both cases, Kramer & Frank who are absolute snakes of the lowest order. They filed a Summary Judgment and when we appeared in court their lawyer said his case "wouldn't fly," so the judge didn't even have to rule on it. They also filed for a new judge, which was granted, but it didn't help them. 

 

On the day before the trial I received a letter in the mail saying they had dismissed the case. Bottom line is that on Breach Of Contract they had to have a signed instrument, which they could not produce.

 

With Midland Funding the Cause Of Action was Suit On Account and Money Loaned. I didn't have any experience with those so I did a lot of research on Appellate Court cases, and fashioned my case on those. In both cases what really helped me was the Appellate Court rulings which established precedence. Citing higher court cases discourages the trial court judge from ruling against you.

 

Good luck with your case.

 

G-Your strategy and hard work is definitely paying off as demonstrated by the positive results you are experiencing.

 

Midland's litigation strategy and that of other JDBs is predicated on account stated as it is the lowest standard of proof and, in many

 

juristictions, trial court judges simply assume judgment in favor of the plaintiff.  

 

In other instances, defendants do not aggressively assert and argue their cases.  Overall, the number of cases at the appellate

 

level is very scarce so your strategy of utilizing the opinions at the appellate level makes eminent good sense.

 

We applaud you!  Please move to the winner's circle.

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Prior to the Case Management Conference I had sent a letter to Midland Funding to let them know that they had not complied with my demand for production of Documents in that there is nothing they submitted that proves they have standing. The letter was to meet and confer dated July 16, 2014. I stated that "As you must know, the responses received are incomplete in material ways and further responses are required. This is an attempt to meet and confer to avoid the necessity of Motions to Compel. For ease of reference, I set forth below defendant's request and Plaintiff's response, and the reason further response must be provided.

Defendant's Request for Production of Document's No. Two

All documents relating to or constituting any assignments to Plaintiff of the account referred to in the complaint.

Plaintiff's response to Request No. Two

" Responding Party objects to this demand on the grounds and to the extent that this request seeks information that is privileged, proprietary and trade secret in nature, protected by the Attorney client privilege and the Attorney work- product doctrine. Plaintiff further objects on the grounds and to the extent that this request seeks material that is irrelevant, immaterial and not reasonably calculated to lead to discovery of Admissable evidence. Not withstanding said objections but subject to them Plaintiff responds as follows. Attached hereto as Exhibits 1 and 2 are non-privileged documents responsive to this request.

Reason Why Further Response Should Be Provided

Exhibit 1 - is a copy of one Orchard Bank Credit Card Statement dated 11/2011

Exhibit 2 - Is an assignment and Bill of Sale from HSBC Bank to Bureau's Investment Group III dated 1/11/2012. This document in no way shows any assignment of the account in question to the to the Plaintiff Midland Funding. Nowhere in this document is there any reference to any account numbers.

The document's requested, if they exist, constitute agreements between plaintiff and the original creditor. There is no good faith basis for Plaintiff to contend that responsive documents are protected by the attorney client privilege, the work product doctrine, or constitute trade secrets.

If Plaintiff does not have a valid assignment of the account at issue in the complaint, it does not have standing to pursue its claims.

Please produce all document's responsive to this request.

If Plaintiff does not do so within 10 Days, Defendant will file a Motion To Compel and seeks sanctions for having to bring unnecessary motion.

If you need to speak to me further about the matter feel free to contact me at the phone number listed at the top of this letter. Mailed 7/16/2014- They signed 7/19/14.

I sent the above letter Certified Mail/ Return Receipt and I received the card with a signature.

I have not received any other papers from them.

Any help is truly appreciated.

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Then you need to do what you said you were going to do. File a motion to compel. I have seen examples around this site, go to members, then california, then type in motion to compel and see if any examples pop up.

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While they're busy not paying attention, you might consider sending some additional Discovery - two Requests for Admissions along the lines of:

1. ADMIT that Plaintiff does not own the alleged debt being sued upon.

2. ADMIT that Defendant owes Plaintiff no money.

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Prior to the Case Management Conference I had sent a letter to Midland Funding to let them know that they had not complied with my demand for production of Documents in that there is nothing they submitted that proves they have standing. The letter was to meet and confer dated July 16, 2014. I stated that "As you must know, the responses received are incomplete in material ways and further responses are required. This is an attempt to meet and confer to avoid the necessity of Motions to Compel. For ease of reference, I set forth below defendant's request and Plaintiff's response, and the reason further response must be provided.Defendant's Request for Production of Document's No. TwoAll documents relating to or constituting any assignments to Plaintiff of the account referred to in the complaint.Plaintiff's response to Request No. Two" Responding Party objects to this demand on the grounds and to the extent that this request seeks information that is privileged, proprietary and trade secret in nature, protected by the Attorney client privilege and the Attorney work- product doctrine. Plaintiff further objects on the grounds and to the extent that this request seeks material that is irrelevant, immaterial and not reasonably calculated to lead to discovery of Admissable evidence. Not withstanding said objections but subject to them Plaintiff responds as follows. Attached hereto as Exhibits 1 and 2 are non-privileged documents responsive to this request.Reason Why Further Response Should Be Provided Exhibit 1 - is a copy of one Orchard Bank Credit Card Statement dated 11/2011Exhibit 2 - Is an assignment and Bill of Sale from HSBC Bank to Bureau's Investment Group III dated 1/11/2012. This document in no way shows any assignment of the account in question to the to the Plaintiff Midland Funding. Nowhere in this document is there any reference to any account numbers.The document's requested, if they exist, constitute agreements between plaintiff and the original creditor. There is no good faith basis for Plaintiff to contend that responsive documents are protected by the attorney client privilege, the work product doctrine, or constitute trade secrets.If Plaintiff does not have a valid assignment of the account at issue in the complaint, it does not have standing to pursue its claims.Please produce all document's responsive to this request.If Plaintiff does not do so within 10 Days, Defendant will file a Motion To Compel and seeks sanctions for having to bring unnecessary motion.If you need to speak to me further about the matter feel free to contact me at the phone number listed at the top of this letter. Mailed 7/16/2014- They signed 7/19/14.I sent the above letter Certified Mail/ Return Receipt and I received the card with a signature. I have not received any other papers from them. Any help is truly appreciated.

 

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Prior to the Case Management Conference I had sent a letter to Midland Funding to let them know that they had not complied with my demand for production of Documents in that there is nothing they submitted that proves they have standing. The letter was to meet and confer dated July 16, 2014. I stated that "As you must know, the responses received are incomplete in material ways and further responses are required. This is an attempt to meet and confer to avoid the necessity of Motions to Compel. For ease of reference, I set forth below defendant's request and Plaintiff's response, and the reason further response must be provided.Defendant's Request for Production of Document's No. TwoAll documents relating to or constituting any assignments to Plaintiff of the account referred to in the complaint.Plaintiff's response to Request No. Two" Responding Party objects to this demand on the grounds and to the extent that this request seeks information that is privileged, proprietary and trade secret in nature, protected by the Attorney client privilege and the Attorney work- product doctrine. Plaintiff further objects on the grounds and to the extent that this request seeks material that is irrelevant, immaterial and not reasonably calculated to lead to discovery of Admissable evidence. Not withstanding said objections but subject to them Plaintiff responds as follows. Attached hereto as Exhibits 1 and 2 are non-privileged documents responsive to this request.Reason Why Further Response Should Be Provided Exhibit 1 - is a copy of one Orchard Bank Credit Card Statement dated 11/2011Exhibit 2 - Is an assignment and Bill of Sale from HSBC Bank to Bureau's Investment Group III dated 1/11/2012. This document in no way shows any assignment of the account in question to the to the Plaintiff Midland Funding. Nowhere in this document is there any reference to any account numbers.The document's requested, if they exist, constitute agreements between plaintiff and the original creditor. There is no good faith basis for Plaintiff to contend that responsive documents are protected by the attorney client privilege, the work product doctrine, or constitute trade secrets.If Plaintiff does not have a valid assignment of the account at issue in the complaint, it does not have standing to pursue its claims.Please produce all document's responsive to this request.If Plaintiff does not do so within 10 Days, Defendant will file a Motion To Compel and seeks sanctions for having to bring unnecessary motion.If you need to speak to me further about the matter feel free to contact me at the phone number listed at the top of this letter. Mailed 7/16/2014- They signed 7/19/14.I sent the above letter Certified Mail/ Return Receipt and I received the card with a signature. I have not received any other papers from them. Any help is truly appreciated.

 

There is a deadline to move to compel:

2031.310. (a) On receipt of a response to a demand for inspection,

copying, testing, or sampling, the demanding party may move for an

order compelling further response to the demand if the demanding

party deems that any of the following apply:

* * * *

© Unless notice of this motion is given within 45 days of the

service of the verified response, or any supplemental verified

response, or on or before any specific later date to which the

demanding party and the responding party have agreed in writing, the

demanding party waives any right to compel a further response to the

demand.

Midland may just be waiting to see if you are going to file a motion or not. Not sure when your responses were served but I would think you are very close to the deadline. You do get an extra 5 days if the responses were mailed.

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You definitely ned to file the motion to compel. That would give you more time before the trial and would increase the chance of MF dismissing the case.

There is a good chance they will dismiss before the trial. But even if they don't, it shouldn't be hard to beat them in court.

If you go to trial you must object on the grounds of hearsay to everything they try to admit as evidence, especially if they don't provide a witness, which they almost never do. If they have no witness then all their evidence is hearsay and they will lose.

Be encouraged, it is not as difficult as it seems. They operate mostly on bluff.

Bottom line is that they have to beat you according to the law. Check out the Appellate Court rulings in your state. You can file a Memorandum stating the Appellate court cases that establish precedence. That way you discourage the trial court judge from ruling against you.

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A field data sheet with my name and info

 

It says Data Printed by Midland Funding from electronic records provided by Bureau's Investment Group Portfolio No.15  LLC pursuant to the Bill of Sale/Assignment of Accounts transferred on or about 5/8/2013 in connection with the sale of accounts  from Bureau's Investment Group Portfolio No. 15 LLC to Midland Funding.

Be cautious of this. The attorneys' who are handling the case against use for Midland told the court that that document, a database dump, was the "link" between all the documents from the OCs and Midland. You need to be prepared to explain to the judge with authority that a generic database dump generated by the Plaintiff is not valid proof of ownership.

This is where it gets tricky and the judge holds the cards. You have to find case law, statute, regulation, or rule that backs your argument that 2nd hand information cannot be admitted. This data is generated by the plaintiff BASED on information obtained from the OC. You need to argue that the information this database dump is based on must be admitted in order to satisfy the evidentiary requirement.

Check with your court rules AND state's statutes on both evidence and motion for summary judgment. Oklahoma has rules and statutes for both.

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