InProSe

UTAH: Anatomy of Midland/JohnsonMark lawsuit: Control the Language!

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A Midland/JM debt collection lawsuit in Utah is usually set in motion following the receipt of personal data information by Midland Credit Management, Inc. from purchased electronic records, as follows:

 

Field                                                                                     Field Data                                                                                   

 

Last Name                                                                          . Mark (Utah Bar # 9602)

 

First Name                                                                            William A.

 

Account Number                                                                   18200000019629639

 

Sale Amount                                                                         1,194.76

 

Contract Date                                                                        20080128

 

Address 1                                                                              PO Box 7811

 

City                                                                                        Sandy

 

State                                                                                      UT

 

Zip Code                                                                                84091

 

Home Phone                                                                          801-285-5700 (W)

 

SSN                                                                                        *******3908

 

Charge Off Date                                                                     20101231

 

Last Payment Date                                                                 20100518

 

LPmt Amt                                                                                26.00

 

COBal                                                                                     1194.76

 

 

 

 

Data printed by MCM, Inc from electronic records provided by Chase Bank USA, N.A. pursuant to the Bill of Sale / Assignment of Accounts transferred on or about 6/20/2012 in connection with the sale of accounts from CB USA, NA. to Midland Funding LLC.

____________________________________________________________________________________________________________

 

So, how are JDB's, with the computer information printed out above, going to dupe the Utah legal system into rubber-stamping their MSJ's as a result of mass producing this computer data before the courts? Simple. They use the language "account" as the basis for a law suit. Just say/print it enough times on the following: Bill of Sale; Affidavit of Sale of Account By Original Creditor; Discovery "Defined Terms"; Request For Production of Documents; Motion for Summary Judgment; Payment Coupon; Notice of New Ownership and Pre-Legal Review; Statement; Closing Statement; Requests For Admissions; et cetera.....get the picture?

 

Remember, it's not an "account" in any legally credible way, it's only printed "final field data" that went to MCM. It's not a proper basis or cause of legal action for a debt collection lawsuit. There has to be a proven, written "credit card agreement" that was received by the Defendant before/when the card was used/issued. Not an "account". And, the credit card agreement has to have certain and specific provisions, terms, and conditions spelled out in it....or the alleged credit card agreement remains "void" and is not binding or enforceable. Specifics of Utah's Statute of Frauds that control whether or not an alleged breached credit agreement is enforceable is coming up.

 

Before we do, let's take a closer look at that filed and attached Capital One "Customer Agreement" that purports to be a Statute of Frauds-compliant credit card agreement. (NOTE: Can someone post the Chase Bank "Card Member Agreement" juxtaposed this one for SOF compliance purposes? I've never seen one.)

 

1. On the last page, on the last "bullet" mark, you see the "Truth in Lending Disclosures", which "means any Account information we provide you that is required by the federal Truth in Lending Act and Regulation Z. These include your application and solicitation disclosures, Account opening disclosures, subsequent disclosures, Statements and change in terms notices."  See the smoking gun? The JBY/Midland has only filed an application and solicitation document which is not a SOF-compliant credit card agreement. It lacks all the necessary elements "within" the SOF, as you will see. Moreover, at the beginning it says, "Thank you for opening a credit card account..."; whereas a column over it says, "When you open your Account, you will receive..."   Proof that the filed document is only an "application" is evidenced under the first column caption "Account Information" where it asks for your "legal name", a "valid mailing address and residential address (if different)", and your "date of birth", your "social security number or other government identification number", and of course "telephone and your employment and income information". Sounds like at this stage of the contract formation, they have no clue who the Defendant really is or even what the terms, provisions, and conditions are! Nobody does! There are none!Who is assenting to what and with whom? Good legal question.

 

2. It should be getting easier to see how it's easier for Midland/JDB to shout "account" from the rooftops but never reference "credit card agreement", as required by law. In reality, it's clear the only thing Midland/JDB can say during the formation of the contract, "someone unknown" was solicited to fill out an application to be considered for a credit card to be evaluated and perhaps mailed out one with a credit limit. But where is the true, actual SOF-compliant credit card agreement that has all of the following before you use the credit being offered?:

 

UTAH STATUTE OF FRAUDS:  every credit agreement in Utah is "void" and unenforceable/nonbinding unless the agreement is in writing and:

 

a. shows a creditor extending credit to a debtor who obtains credit "under a credit agreement" from a financial institution;

b. sets forth the relevant terms and conditions;

c. expresses consideration;

d. each credit agreement shall contain a clearly stated...provision giving notice to the debtor that the written agreement is a final expression of the agreement between the creditor and debtor and the written agreement may not be contradicted by evidence of any alleged oral agreement;

e. without a signature, a written copy of the terms of the credit agreement is provided to the debtor, and that such agreement provides that any use of the credit offered shall constitute acceptance of those terms; and after all of the above, the debtor, or a person authorized by the debtor, receives the agreement then request funds pursuant to the credit agreement or otherwise uses the credit offered.

 

The law uses "credit card agreement" over and over and over again while the JDB/Midland/JohnsonMark use "account"....now you know why we must control the language and allow them to drown out in the deep "void" waters in which they swim....as outlaws and a menace to our State! Make them come onto the shore, on solid legal ground where we can filet them. For the SOF clearly and plainly states that "a creditor may not maintain an action" on anything but a SOF-compliant credit card agreement! Make them cough up a valid, written, compliant credit card agreement that they can prove you received before you used the credit that was extended. 

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I would not agree with your assessment that everything is "void" unless there is a written agreement.  If you received a card and used the card, there is an agreement of sorts indicated by your usage of the card.  That doesn't mean these JDB's have enough to prove their cases, but it's not automatically void without a written agreement. 

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Graym.....thank you for your comment and heads up attitude. The primary affirmative defense here in Utah is the well defined Statute of Frauds and its requirement of specific credit card agreement receipt timing in the formation of the contract with OC. I agree with BV 80.

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yep UTAH is the only state in the 50 I believe that has that so you can use statute of frauds as a affirmative defense.  You need to know how to argue it though.

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Any and all suggestions are sought/welcome...please advise if you can. Our state needs all the help we can get.  Thank you!

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I wish I could agree! But heretofore the JDB's have taken over this state (and legislation re: SB 281).  I got Johnson Mark to withdraw its SB 281 Motion the other day. It may have been something I said. But this state really needs help/guidance on "how" to argue it, as Shellieh98 pointed out. Even a brief sample of how an experienced person would file/present the SOF affirmative defense would be of tremendous value! Anyone?

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a valid, written, compliant credit card agreement that they can prove you received before you used the credit that was extended.

Is your answer. Most jdb's don't have a copy of the credit card agreement. I am sure if pushed, they would attempt to introduce any credit card agreement they could find off the internet. Your task then would be to argue that. The card agreement should be the one you received when they sent you the card. It is not like a signed agreement, it's the stuffer that lists all the interest rates, how to dispute, any mediation clauses, when you are considered late, the amount of late fees, over the limit fees, etc. the beauty of this rule is it also includes any up dates to the agreement, like when they change the terms. Use of the card is acceptance of the agreement, but they have to provide the agreement. A real beauty if you had an account for 10 years..the original agreement, plus they update every couple of years. So if you opened an account in 2004, and they sent you an agreement for 2006, that would be fraud, it is not the agreement you agreed to when the card was issued. I think there will be a lot of that type stuff going on, but it would be up to the defendant to argue it wasn't the agreement governing the account.

They can still call it an account, but they need the agreement that governs that account when it was opened.

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 A real beauty if you had an account for 10 years..the original agreement, plus they update every couple of years. So if you opened an account in 2004, and they sent you an agreement for 2006, that would be fraud, it is not the agreement you agreed to when the card was issued. I think there will be a lot of that type stuff going on, but it would be up to the defendant to argue it wasn't the agreement governing the account.

 

Based upon the UT Statute of Frauds that a consumer must have the agreement before using the card, the defendant would be able to argue that a 2006 agreement would not be proof that an agreement was sent to the defendant before he used the card in 2004.  Of course, he would also deny receiving a 2004 agreement.

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Just this once, can I speak for the entire state of Utah and all its credit card agreement consumers?

"We love you all, man! Thank you for helping to shed legal light on a very dark legal cloud that's been hanging over our heads for years....you've blessed us all with our 'Jesus' moment, in deed!".

Shellieh98/BV80,et al, you folks have good hearts and thanks for having the experience, knowlege, and professionalism to allow that to shine thru for all to see and to bless others in a frantic, frustrating time of need in their lives....wow....!

P.S. you've made Utah a hell of a better state to live in! InProSe

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I wish I could agree! But heretofore the JDB's have taken over this state (and legislation re: SB 281).  I got Johnson Mark to withdraw its SB 281 Motion the other day. It may have been something I said. But this state really needs help/guidance on "how" to argue it, as Shellieh98 pointed out. Even a brief sample of how an experienced person would file/present the SOF affirmative defense would be of tremendous value! Anyone?

OK then it sounds like you have a good law that no other state has and you just need to know how to argue it. There must be case law from someone before you that you can read the whole case and have a blue print

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Everyone fighting Johnson MarkMidland in Utah should read the following link. The Judges are rubber stamping the Midland affidavits produced for MSJ. There is also a note at the end regarding Statute of Frauds

 

http://scholar.google.com/scholar_case?case=4602771507598545236&q=portfolio+recovery+v+migliore&hl=en&as_sdt=4,45

 

Would be interested in any comments on this decision!

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Great topic to introduce here. Thank you.

 

Migliore is a perfect example of (1) the evolution of a Johnson Mark/JDB lawsuit that gets initially filed as one, but changes over time to stay one step ahead of the defendant as the case file begins to take on OC documents as needed; (2) how Johnson Mark/JDB use the legal word/concept "Account" over and over as a diversionary tactic and effective smoke screen to avoid/side step the Statute of Frauds elements altogether; (3) how the defendant takes that "Account' bait blindly then subsequently drowns out in the deep "void" waters where the JDB wants the defendant to be so it can get its MSJ.

 

Migliore did preserve the SOF right at trial to reassert it on Appeal, but that court did point out his abandonment of that critical "written" credit agreement on Appeal....big mistake on Appeal, and fatal flaw at the district court level.  Migliore did not know how to present and argue the primary affimative defense in all "credit agreement" (not "Account") collection law suits here in Utah.

 

Let's work together here to present an effective course for Utah to follow when Answering a JDB "Summons and Complaint" as in Migliore where JDB's "complaint asserts a breach of contract claim based on the assignment of the 'Account' to Portfolio by Wells Fargo Bank." 

 

This is how I would attack the Migliore Utah lawsuit (please proffer yours):

 

1. I would Move for Dismissal w/prejudice since JDB filed a cause of action under which a valid, verified "credit card agreement" was not the basis of the action (as statutory mandated) nor is there any relief being sought available; further, such an action on a mandated "void" credit agreement violates due process rights as there's no authorized jurisdiction to hear such a matter; nor, as a result, does JDB have standing to sue since its action is a nullity; nor does JDB have a valid assignment of rights from Wells Fargo Bank.

 

2.  If JDB did overcome these legal elements to maintaining an action on a valid, verifed credit card agreement, I would force them to prove "when" I got the CCA as I did not get one as required by the Statute of Frauds. Here is where the JDB has a statutory mandate to prove that I got the valid CCA before, or at the time, I used the credit extended. This element of contract formation shows "assent to the terms and conditions" via usage of the card. It's a critical condition precedent that, without such, maintains the legal "void" status of the alleged credit agreement. Its how Haring defended her JDB lawsuit and got attorney fees awarded.

 

(How can we better explain the above, add to it, and figure out an effective format/steps here in Utah to properly defeat the JDB typical lawsuit? Please advise, help! Looking for guidance and ideas, suggestions. How can Utah present and argue it SOF primary statutory defense!?)

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