ready2fight2014

I’m absolutely furious!!!

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I’m absolutely furious!!!

  1. That I lost my case against Midland
  2. That maybe I could have done a better job

 

So a brief overview: I’m in the state of Massachusetts and what Midland does here is sue people in small claims court under a court magistrate and not a judge.

I now can see how this also plays to their advantage, I’ll explain in minute.

So I’ve been to this small claim fighting this case 3 times, The last being “the trial”.

So Midland sues me for an alleged Citibank credit card debt they purchased that they say I owe.

What I did:

  • I requested validation of debt, which they did not even answered until the second court date and all they produced then was 1 copy of a 2008 statement which they claim is the last statement.

    They also provided an affidavit by some lady that claimed that she has personal knowledge about the account and how Midland handles it.

    And they also provided a Bill of sale(copy) that is to show that they own the account because they purchased it, yet the bill of sale does not make any reference to the actual account # or specifically shows the account # which is what they are suing in the first place.

Based on my research I  figured I had enough to prove that they did not have standing to sue in the first place because they failed to show that they specifically owned the account to begin with.

I argued to the magistrate this fact and that unless they showed all the documents that the bill of sale makes reference to that contain the actual account# they have not shown any proof of standing to event sue in the first place.

So I built my whole argument on this fact thinking that it is obvious that a person cannot sue another unless they actually have standing and can show that they legally can sue because they own the debt.

Now to the point where this whole small claims court scenario I mentioned at the start is an advantage in Massachusetts to Midland.

So before the trial begins the Magistrate goes over the instructions monologue and 2 things caught my attention:

 

  1. The magistrate says that since this is small claims the proceedings are very informal
  2. The rule of evidence is not in play

What? ???

No wonder he did not pay attention to my argument of lack of standing!!

So now here I am. I have 10 days to appeal for jury or judge trial, and according to what I’ve researched and the instructions, I must be very specific on the points that I’m appealing and must be a matter of law.

I’m kindly asking for your help! I just can’t stand losing to the scum Midland!

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SO! Now you appeal to a higher court in your area while you have time to do so. Also, get on here and learn how to defend yourself. All the info to do so is here.

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Unfortunately what happened to you happens to a lot of pro se defendants in small claims "informal" courts. Most of the time the plaintiff wins through proper legal procedure which can be something as simple as the defendant not understanding what to legally say and when to say it. Other times the courts are just stacked against you and you will usually lose without an attorney. In my state General Sessions Courts are very similar to this, but you can still have a few options to win assuming you know what to do and when to do it. These include sending a subpoena to the person who signs the affidavit, filing a sworn denial etc. 

You will need to find out what works legally in MA. on the next level which should be a more formal court of record. Without knowing any of the details of your case it will be impossible for others here to try and help you. You might start by answering the questions below so others can help you. Just leave out all personal info and round off all numbers.

 

1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

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

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

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

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

 

First thing you will want to do is get you appeal filed on time. It looks like you can apply for a fee waiver if you qualify.

http://www.lawlib.state.ma.us/source/mass/rules/tc/small10.html

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Sorry for the delay. Below are my answers in red!

 

1. Who is the named plaintiff in the suit?

 

Midland Funding

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

Lustig, Glasser & Wilson PC

3. How much are you being sued for?

 

$1899

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

Citibank

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

Received summons via mail

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

Mail

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

Sullfok County, MA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

According to statement they presented on 2008?

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

7 years in MA

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Judgment for the plaintiff. 3 days left submit an appeal

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

I did but never got an answer. Pointed this out to the magistrate with no luck!

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

Bill of sales

Affidavits

last CC statement

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@ready2fight2014

  

I hope this helps. Good luck!

http://www.masslegalservices.org/content/substantive-defenses-consumer-debt-collection-suits

 

 

http://www.mass.gov/courts/docs/forms/small-claims/translated/english/defendants-claim-of-appeal.pdf

 

"4. You are entitled to a trial by either a judge or a jury only for disputed questions of fact. Section 23 requires you to specify 
those disputed facts in your claim of appeal. If a judge finds that no legally-significant facts in this claim are disputed, the judge may 
decide your appeal without a jury and without conducting a trial, by a procedure known as “summary judgment,’’ in which the judge 
applies the law to undisputed facts. You should be prepared to inform the judge about which relevant facts the plaintiff and the 
defendant agree on, and which relevant facts they disagree about.
 
5. Generally, the magistrate’s earlier decision will be “prima facie” evidence in the trial by a judge or a jury. This means that the 
judge or the jury will be told about the magistrate’s decision. It also means that the judge or the jury could again decide in the plaintiff’s 
favor even if the plaintiff chooses to rest entirely on the magistrate’s prior decision and presents no other evidence before the judge or 
the jury."

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I got my judgment reversed because I appealed and the higher court found the evidence was not admissable because an affadavit from a MCM(midland credit management) employee could not attest to the records of the Plaintiff,  Midland Funding. Check your affadavit,  who does the affiant work for ?????? MCM  or Midland Funding??

 

Check out how to appeal in your state. I was furious too and knew if I did not appeal, when I knew I should have prevailed I would forever have

regreted it.

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If a magistrate decision becomes prima facie evidence in an appeal how should i word that prima facie evidence is incorrect in order to have the appeal go through for a trial under a judge?

 

So the fact is:

 

That magistrate found that a Bill of Sale that did not specifically showed the alleged account that I was sued on and an affidavit by an employee of the plaintiff were eneough to show that JDB was the owner  of the alleged debt and had standing to sue.

 

I just can't make sense how this is possible and need to show this fact on my appeal in order to have heard by judge!

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Also who does the affiant work for MCM or Midland Funding?????  If it is MCM how cn they verify another companies business records?? Chck your states rules on what evidence they need to allow business records to be admitted.

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Update & Good News:

 

First thanks to all for your help so far. I'm glad to report a small victory in my opinion:

 

I decided to file an appeal and just got the notice to inform that it will be heard yesterday; Just a couple of days after I filed the appeal. Now I mentioned this because when I went to file the appeal the clerk mentioned that it could take up to a couple of month before I hear anything back as far as if the appeal would be granted and a date for a trial.

 

So I was bit surprised that I got a response this quickly and happy of the good news that the appeal was granted!

 

That tells me a few things:

 

1. My appeal reason was strong and valid legal wise if it was not it would have not been granted(reason being the plaintiff has no standing to sue). I simply stated that the plaintiff failed to show that they actually own the debt that they are suing me on even though they introduced a bill of sale, an affidavit and one copy of CC statement. I simply pointed to the fact that the bill of sale does specifically show the account that they are suing me on and only makes reference to a book of accounts they say they purchased.

 

2. I think have very good chance of winning the case now after increasing my knowledge of the whole process after reading lots of good info on this forum in particular.

 

Moving To what's Next?

  1. What should I do to be as best prepared as possible for the trial?
  2. Should I file a request to have the plaintiff produced actual documents that proves that they own the account they are suing me on and if so how can I do that?

 

The Plaintiff can just fold...

 

Potential outcomes:

 

a) if they can not produced the documents that proves that they actually own the account, the judgement can get reversed

 

B) They might just show up and let me prove my appeal which should lead to option a above.

 

c) They may decided not to even bother and ask the case to be dismissed at this point(more cost for them if they can't easily produced  the evidence needed to prove that they own the debt.

 

d) They have additional evidence that would actually support their claim(at which point we can then move on to other points like SOL)

 

 

At Trial what are some of the things I should do to NOT incriminate myself if they decide to fight and use legal tactics that I may not be  familiar with?

 

As an aside:

 

It just boggles my mind that these JDB can just sue people without actually showing that they own the accounts that they are suing on. Doesn't the court/ judges, magistrate see this?

 

I pointed this to the magistrate that heard my case and I'm still trying to figure out what was it that he did NOT understand about the fact of having legal standing to sue. I clearly pointed this out yet he awarded a judgement to the plaintiff, and yet it was enough for a judge(I think) to grant me an appeal based on this same fact????????

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As I have said before, the JDB's are a huge cash cow for the courts.  If the lowe court rules against you, either yo appeal, More money for them or not. The JDB's file  and enormous amount of suits from verizon, to ge capital to chase to you name it , Anyone who they can go after!!

 

Until regular people like us start complaining to our states att generals, and want to be in office politicians, and new people, nothing will change.

 

In MN the atty gov took action, because the people overwhelmingly put it to her. When good people do NOTHING  evil prevails.  So first off, win your battle,  then help others win theirs!!!!!

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So if the initial judgment against me becomes prema facie evidence for the plaintiff in the appeal, How can I go about showing the judge that fact remains that the plaintiff did not prove that they have standing to sue. This was the basis of my appeal and it was granted.

The plaintiff(Midland) only showed

1. a bill of sale that did not specifically referenced my alleged account. From what I learned here this is not enough to establish ownership right?

2. An affidavit by employee that can only testify to how midland keeps its record and who they bought the alleged account I owe from but can not testify on the previous owner manner of record keeping practices and the same for the original creditor(citibank)

3. One copy of an alleged credit card statement that shows the alleged last payment. The curious thing about this statement is that the last payment is not an actual payment that I made. It reads "deferred payment". I'm think this creates some issues with establishing SOL is it not?

Can this be still argue or do I have to show something different?

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Hi, Sorry to say , I won my appeal as well, And at trial today they had a telephonic witness from Midland, and the judge would not let e question her on OC's records.

So lost again.

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So if the initial judgment against me becomes prema facie evidence for the plaintiff in the appeal, How can I go about showing the judge that fact remains that the plaintiff did not prove that they have standing to sue. This was the basis of my appeal and it was granted.The plaintiff(Midland) only showed 1. a bill of sale that did not specifically referenced my alleged account. From what I learned here this is not enough to establish ownership right?2. An affidavit by employee that can only testify to how midland keeps its record and who they bought the alleged account I owe from but can not testify on the previous owner manner of record keeping practices and the same for the original creditor(citibank)3. One copy of an alleged credit card statement that shows the alleged last payment. The curious thing about this statement is that the last payment is not an actual payment that I made. It reads "deferred payment". I'm think this creates some issues with establishing SOL is it not?Can this be still argue or do I have to show something different?

I've seen you say several times that the bill of sale does not "specifically" reference the alleged account. Did they provide a 'schedule' or any other documents with the bill of sale that does show your account number? What evidence did they supply that could possibly tie their claims to you and your account? Did they ever use an account number in any of their records? Which ones?

I have no clue how MA magistrate appeals work, but the higher courts generally will not hear any issues not raised in the lower court. If you were denied the ability to even raise the issue, that may be what you have to argue to the appellate court. In that case, it seems that you may end up back at the trial court with the ability to raise those issues to that court and then that court has reign over what evidence is admitted.

I found out that evidence in trial courts is pretty sacred and appellate courts do not like to rule on the admissibility of specific evidence. The logic is that the trial court has hands-on experience with the case and are in a much better position to determine the validity of the evidence. Reversing rulings on evidence are reserved for clear error of law or abuse of discretion. If there is nothing on the record supporting a clear error or abuse, the appellate court generally won't disturb the trial courts findings on evidence.

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Harry thanks for your input. To answer your question...

1. The bill of sale does not mention the actual account number other than the reference that is part of a book accounts that they purchased and that its part of a scheduled-exhibit that they did not show. In other words all they are saying is that my alleged account is included in the book of account yet they did not show this book of account or my account number in the bill of sale.

The only other mention of this account number is on the affidavit that their employee made and a copy of an alleged last billing statement that shows a very questionable last payment labeled "deferred payment"(this raises some questions of SOL but we did not even get to argue this and in my opinion it should not get to this point if the plaintiff can not prove that they have standing to sue.)

I attempted to raise this issue to the magistrate clerk who ruled in the case and it was as if this was not important. I clearly stated,

"Mr. Clerk nothing on he bill of sale that the plaintiff introduced as evidence shows or referenced the alleged account they say I owed, this is not enough to establish ownership"

and yet he still ruled against me.

Is this not an error in applying the law? Must not someone clearly prove that they actually have the legal right to sue?

I just can't figure out how a case is even heard without having these elements in place.

Thanks for all your help...

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@ready2fight2014

You have to research your courts' precedent on the issue of standing and what they require to prove that and other issues. The JDB presented a bill of sale that doesn't show your name or account number and a credit card statement that does show your name, address, and account number.

Civil court decisions are based on a preponderance of the evidence. There must be more than a denial and an argument from you in order to win. You have to support your argument with evidence or court precedent.

Just about every member of this site would agree with you that a generic bill of sale doesn't prove ownership of an account, but when it's coupled with a credit card statement, while it still doesn't prove ownership to us, it becomes more convincing to a court. If the JDB's evidence is admissible, then absent evidence or court precedent from the defendant, the preponderance of the evidence is on the JDB's side.

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What @BV80 said.

For me the wild card is not knowing what your trial court is allowed to consider as "evidence" and what rulings the trial court makes that your appellate court will re-consider.

The best thing you can do is find some rulings from the appellate court to see how they have ruled in similar cases.

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Thanks BV80

I guest my question to the court with regards to your point on preponderance of the evidence is that in this case there has to be a link established between the bill of sale and the credit card statement and affidavit, that being the account number being part of the book of accounts that the JDB purchased.

If this is not the case all you 3 separate pieces of evidence that create the illusion of being linked.

The way I see it any JDB or anyone can get a hold of CC statement, create an affidavit and a Bill of sale and sue anyone without showing a link between the evidence that supports the claim right?

What I'm would like to find is a specific law that state the requirement to have standing to sue!!

Thanks all

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What I'm would like to find is a specific law that state the requirement to have standing to sue!!Thanks all

You are making this part way harder than you need to. The basic requirement is that they be a party of interest in the proceeding and they allege that you owe the debt. Their claim is that you entered into a credit card agreement with the original creditor and defaulted. The OC sold your debt as part of a large portfolio of bad debt and they are the successor in interest when they accepted assignment of the agreement.

It is legal to sell your interest in a contract to a third party which then steps into the shoes of the original creditor and has all the rights and duties of the OC. One of those rights is to sue the other party if they default or breach the contract.

Your claim is that their bill of sale does not prove that they bought YOUR account specifically and the affidavit is hearsay regardless of whether they have a statement with your name and address on it.

The court will decide which side is more credible.

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@ready2fight2014

I read what you said they gave you when you requested debt validation. That would seem not to comply with MA law. This is from the law firm of Bulkley and Richardson:

Debt Validation

Both the Massachusetts Act and the Federal Act require that a debt collector cease

collection activity where a debtor disputes a debt and refrain from further collection activity

until the debt collector “validates” the debt. 15 U.S.C. § 1692g(B); 940 C.M.R. § 7.08(2). To do

so under the Federal Act, a debt collector must only confirm “in writing that the amount

being demanded is what the creditor is claiming is owed.” Clark v. Capital Credit &

Collection Services, Inc., 460 F.3d 1162, 1173-74 (9th Cir. 2006) (quoting Chaudhry v.

Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999)).

Under the Massachusetts Act, however, the creditor must produce “[a]ll documents,

including electronic records or images, which bear the signature of the debtor and which

concern the debt being collected.” 940 C.M.R. § 7.08(2)(a). That burden is onerous in the case

of consumer debts. For example, in the case of a mortgage loan, those documents usually

include hundreds of pages of closing documents. It could even be read to include copies of

all payment checks, since those payment checks bear the debtor’s signature. Obviously, the

Massachusetts Act imposes a much greater burden on creditors in the case of disputed debts

than does the Federal Act.

http://www.bulkley.com/files/2012/11/Bulkley_Richardson_Fall_2012_Banking_Bulletin_-_MA_Fair_Debt_Collection_Practices_Act.pdf

The link:

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The MA act referenced in the above link provides for attorneys' fees. You may want to consult with that atty I mentioned in an earlier post or someone from www.naca.net to see if you have a valid claim.

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