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Sued by Midland in OH & Need help on Motion for More Definite Statement


amyw
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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.)

Weltman, Weinberg & Reis

3. How much are you being sued for?

$10,000

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

Citi

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

Served

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

In Person

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

Yes

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

None

9. What state and county do you live in?

Ohio

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

Sometime in 2009

11. What is the SOL on the debt?

6 years in Oh, and the debt is within SOL.

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).

Just served

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.

No

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?

28 Days

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

A single statement for July 2009.

Copy of bill of sale and assignment: Citi sold to Asset Acceptance, in 2011; Asset Acceptance sold to Midland in 2013

After the research I've done at this forum (thanks to all that share their wonderful experience of fighting JDB!!!), I am considering to file a Motion for More Definite Statement.

Here is what I plan to argue in my motion and any suggestions and corrections are welcome!!!

-- Paragraph 3 of Plaintiff’s complaint states “By use of the account, the Defendant became bound by the Account's agreement"

However, they did not include the agreement, I can at least ask for this in my motion since such an agreement is required by O.R.Civ.P. 10(D), right?

-- Paragraph 4 of Plaintiff's complain state "The amount now due and owing is $10xxx. A copy of the STATEMENT is attached as Exhibit A."

The JDB did attach a single statement in July 2009 to the Complaint, and in the statement it lists the previous balance, purchases, credits, finance charge, and new balance for that statement cycle. Can I still argue in my Motion that this single account statement attached to the Complaint does not comport in any way with the requirements of O.R.Civ.P. 10(D)?

To comply with O.R.Civ.P. 10(D), the Complaint must attach a complete copy of the account to the complaint: An account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due. Id at 125, 38 Ohio Op. 2d at 145, 223 N.E.2nd at 35.

I am hoping to get the motion filed as soon as possible. Thank you so much for any help!!!

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I think you could probably file such a motion. You cited:

"To comply with O.R.Civ.P. 10(D), the Complaint must attach a complete copy of the account to the complaint: An account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due. Id at 125, 38 Ohio Op. 2d at 145, 223 N.E.2nd at 35."

That's not a complete citation and is cited incorrectly. Where did you get it?

Here's a ruling for you to read. It has some good case law.

http://scholar.google.com/scholar_case?case=9128992276154103762&q=%2210%28D%29%22+AND+%22copy+of+the+account%22&hl=en&as_sdt=4,36

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Thank you for the information! Read the case and the post by elite33. Really helpful!!!

For the complaint, the JDB only attached one single statement, and the new balance in the statement DOES NOT MATCH the amount claimed in the Complaint. This is good news, right? because this means that the plaintiff fails to show a running balance that permits calculation of the alleged amount

Here is my Motion, any correction/suggestion is welcome!!!

Now comes the Defendant, ME, PRO SE, and hereby moves this Court to order the Plaintiff to make a more definite statement of its Complaint per O.R.Civ.P. 12(E) for the reasons set forth in the attached memorandum in support.

MEMORANDUM IN SUPPORT

The complaint filed by the Plaintiff is insufficient as a matter of law. Pursuant to Rule 10(D) of the Ohio Rules of Civil Procedure, when a claim “is founded on an account or other written instrument, a copy of the account or written instrument must be attached to the pleading. If the account or written instrument is not attached, the reason for the omission must be stated in the pleading.” Defendant contends that Plaintiff’s complaint is insufficient since a proper statement of account was not attached to the complaint.

1. Paragraph 2 of the Plaintiff’s complaint states, “The amount now due and owing is $10xxx. A copy of the STATEMENT is attached as Exhibit B.”

Defendant cites Rule 10(D) of the Ohio Rules of Civil Procedure. Various appellate courts have interpreted Rule 10 (D) in cases involving collection of credit card debts. In Brown v. Columbus Stamping & Manufacturing Co. (1967), 9 Ohio App. 2d 123, 126, 38 O.O.2d 143, 223 N.E.2d 373, the Franklin County Court of Appeals set forth what is required for an account to be in compliance with Rule 10(D): “[a]n account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement, which permits the calculation of the balance, claimed to be due.”(Id at 126)

The Plaintiff‘s Exhibit B does not satisfy the Brown requirements because it does not state a beginning balance starting at zero, nor does it reflect the item(s), dates, charges, debits, credits, or a summarization which permits the calculation of the amount claimed to be due. In particular, the Plaintiff has failed to provide a running balance or other arrangement that permits calculation of the amount alleged in Paragraph 2 of the Plaintiff’s complaint.

2. Paragraph 3 of Plaintiff’s complaint states, “By use of the account, the Defendant became bound by the Account’s agreement.”

There is no credit card contract or agreement attached to the Plaintiff’s Complaint, identifying the Defendant as the debtor. Defendant contends that the Plaintiff’s failure to provide a copy of said Agreement is in violation of Rule 10(D) of the Ohio Rules of Civil Procedure.

3. Paragraph 4 of the Plaintiff’s complaint states, “Defendant breached the Account’s agreement by failing to make payments on the Account as required.” Defendant again contends that the Plaintiff’s failure to provide a copy of said Agreement is in violation of Rule 10(D) of the Ohio Rules of Civil Procedure.

The Defendant, ME, for the reasons stated above, respectfully requests this Honorable Court to grant her Motion pursuant to Rule 12(E) of the Ohio Rules of Civil Procedure for a more definite statement. Specifically, the Defendant requests that the Court order the Plaintiff to provide specific information regarding the following:

a ) Attaching an account statement that comply with the Rule 10(D) of the Ohio Rules of Civil Procedure and permits calculation of the amount claimed to be due;

b ) Providing a complete copy of the credit card contract/agreement/terms including the original application and agreement, and any and every amendment subsequent thereto, identifying the Defendant as the debtor.

The Defendant respectfully moves this Court to order the Plaintiff to amend the Complaint within fourteen (14) days of this order, or dismiss the Complaint.

Respectfully Submitted:

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Make sure yuo file your Motion for a More Definite Statement BEFORE your ANSWER.

Also, be advised that depending on your judge and the particular OH Appellate district you are in, the Motion may be denied. However, even if it is, you can then file your Answer and the case will proceed. And even if the judge grants your Motion, Midland may still be able to add just enough info so that it complies with R. 10 (D, and again, the case will proceed. Unfortunately, it is usually not a silver bullet.

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