fightingmidlandinok

A victory in Motion for Summary judgement (of sorts)

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I had my Summary Judgement Motion hearing today. It's on a Junk debt buyer credit card case. The plaintiff is Midland funding. I wrote in detail about it in other posts, so I won't go into it here. The first SJ hearing was continued from 3-26-15 when the judge told their attorney they had to have something from the original creditor showing my account name and number. So here's what happened at Summary Judgement today:

 

The Judge called us up and wanted to know again why it was continued from March. As their attorney for Midland said "I'll find it here in just a second". I said "it's because you told her she needed to have a document directly from Chase showing the assignment of my name and account number to Midland". So he held up the little paper with the data file from Midland and said "Mr. so-n-so are the last 4 numbers of your Social Security number ####?" I told him "yes". Then he went on to say that this data file shows that Midland has my account.

Fortunately, this fell right into what I had spent most of time and energy on and I proceeded to explain that record was from the plaintiff's own records, not Chase's, that the affidavit that record attached to was from Midland and tried to "self-authenticate" their own records, that records referred to in the affidavit  had not been produced as required by Summary Judgement Rule 2056 (e) and that SD-114296 clearly shows that these affidavits cannot be the basis for Summary Judgement.

As I was relaying this information the judge just kind of stopped looking at his papers and slowly lifted up his eyes and looked at me. Then he said "Mr. so-n-so have you ever heard the saying, be careful what you wish for? Well you may get more than you bargained for. I'm going to deny the motion for summary judgment and we can just set this for trial. Then when the plaintiff comes up with what I think will be easy for them to get, then Mr. so-n-so, you will have a lot of very expensive lawyer fees to pay on top of this settlement." So, he sent us over to his clerk and we got a trial date in September.

As I was leaving the area by his bench he called my name "Mr. so-n-so, do you know what a pre-trial conference is?" I replied "Vaguely your honor. But I certainly will by the time it arrives." And that was that.

Their attorney, then told me all smiling "I am sure we can work something out. I will send you our BEST offer." I told her that I was willing to listen but that $5,000, $7,500 (their approximate suit amount) or $12,000 were all the same to me I can't pay it.

 

So I guess in some ways it's a victory but on the other hand I am also digging myself a deeper hole. I am going to take a few days to breathe as the trial is set for September and then start work on the pre-trial conference.

 

The thing that chaps me the most is that to me the judge basically admitted that every time he has granted these summary judgements on almost identical evidence he is wrong. Because when push came to shove and I gave him absolutely no other choice he sent it to trial. If he really thought SJ was appropriate he would have just said "Summary Judgement is granted. Appeal it if you want, Mr So-n-So".

 

I have to say I am exhausted and fearful of the future but also a little invigorated. I worked really hard on this and spent many long nights reading about it and at least at this point I was a tiny bit vindicated. I have pored over hundreds of these cases, and the very few (about 5 of 300ish) that made it this far, Summary Judgement was always given to the plaintiff. I found 3 appeals, two were affirmed, and one was reversed. (Unifund vs. Ekpo, SD-11496, my new best friend.)

 

I hope my continuing saga helps someone or at least lets them know that standing up for yourself and fighting these vultures tooth and nail can be done pro-se.

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Good job!

 

From what you have described the judge was sympathetic to them, given that all they had to do was provide one document. If they didn't provide it then, chances are they simply don't have it. Me personally, I wouldn't entertain anything form them other than a flat out dismissal.

 

Have you sent Midland any interrogatories or request for admissions?

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The judge granting the other summary judgment motions isn't wrong if the motions were not properly challenged. Your term was "gave him no choice". That's what happens when a party follows the rules and whatever precedent applies to the circumstances.

 

So bravo!  You did a great job in researching and boxing the judge into having only one option.   :-)

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Thank you Harry Seward. I appreciate it.

 

And to answer the previous question. Yes we have been through discovery. It was pointless as I had nothing to give them and they objected as too burdensome to every single thing I asked for, or said it requires a conclusion of law they cannot make. Which frankly I was ok with. Why would I want them to prove their case?

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Thank you Harry Seward. I appreciate it.

 

And to answer the previous question. Yes we have been through discovery. It was pointless as I had nothing to give them and they objected as too burdensome to every single thing I asked for, or said it requires a conclusion of law they cannot make. Which frankly I was ok with. Why would I want them to prove their case?

 

 

Even if they provided every document requested, all of it is still hearsay, they wouldn't be able to use it for a MSJ or at trial, it wouldn't prove their case.  Normally, I would recommend sending discovery so that you could show the court that they have nothing but unauthenticated, and hearsay evidence and no document purporting to show the sale of the individual alleged account making the case ripe for your own MSJ or MJOP.

 

With a trial date being set, the point of discovery at this point is so that you aren't ambushed at trial with evidence you never knew about. You would request a list of all documents, and other evidence that they plan to use at trial, and a list of all witnesses they intend to call at trial. Could be different in your state, but generally they wouldn't be allowed to call witnesses not disclosed during discovery, nor use the documents that you specifically asked for. This would just be for good measure so you are not caught off guard, most, if not all of their evidence would be inadmissible anyways.

 

Last word of advice, at trial, be sure your objections to their evidence are loud and clear. If they try to introduce documents from chase, object that it is unauthenticated hearsay, same goes for charge slips or credit card statements.

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Sept is 4 months away.  You have time to prepare.  Maybe you will be able to work out a more favorable settlement by then.  In the meantime, I would try to locate a law school library and read some OK trial practice manuals.   Law school librarians are usually willing to help the general public. 

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Even if they provided every document requested, all of it is still hearsay, they wouldn't be able to use it for a MSJ or at trial, it wouldn't prove their case.  Normally, I would recommend sending discovery so that you could show the court that they have nothing but unauthenticated, and hearsay evidence and no document purporting to show the sale of the individual alleged account making the case ripe for your own MSJ or MJOP.

 

With a trial date being set, the point of discovery at this point is so that you aren't ambushed at trial with evidence you never knew about. You would request a list of all documents, and other evidence that they plan to use at trial, and a list of all witnesses they intend to call at trial. Could be different in your state, but generally they wouldn't be allowed to call witnesses not disclosed during discovery, nor use the documents that you specifically asked for. This would just be for good measure so you are not caught off guard, most, if not all of their evidence would be inadmissible anyways.

 

Good advice on the ambush scenario........I'd ask for anything they MIGHT try to use and especially witness's. The more you paint them into corner gives you more "appeal-able points" and stronger arguments for a jury to cuss and discuss. You have a gift of 3-4 months to prepare. Remember that your arguments must have legal foundation, but you must also make a case to the jury as to why, even if it looks like its your account and YOU OWE IT that the Plaintiff must PROVE they OWN the DEBT legally. For were you forced to pay the Plaintiff and another entity (JDB ??) comes along later you COULD be made to pay BOTH for the same debt................and only ONE entity ( a Real Party in Interest) can own your debt That their "evidence is not legally sufficient to firmly establish their proper ownership of the debt....and thus legally entitled to collect on such.

 

Juries rule more on their own feelings about a matter than the evidence....that is normally just something they use to justify their vote. Plant the feeling in their minds that if they find you guilty they might be making you pay a debt....even if it IS your debt.............to the wrong party. Basically put a guilt trip in their minds, they most likely will expect you to pay your debts but few will expect you to pay them to the wrong party.

 

Last word of advice, at trial, be sure your objections to their evidence are loud and clear. If they try to introduce documents from chase, object that it is unauthenticated hearsay, same goes for charge slips or credit card statements.

 

2nd this Motion:.......

 

Object clearly and firmly.....one thing to remember, objections in open court are fine..............if they are recorded and transcribed. Be sure that there will be a court reporter ( or the court is making an audio record of the hearing that can be transcribed later)  there (and that will cost you some money if you require it..as will the transcript which must accompany any record for an appeal) for the trial. That's why the new discovery, covering ANY area they might bring up this allows you to either get what your asking for...and will highlight their stalling, refusing or  failing to provide additional documents or new "evidence" , along with your written objections and motions to strike or exclude any provided ( and legal basis for these ) into the "WRITTEN RECORD". This could reduce the cost of a transcript or eliminate the need for it if appealed.

 

Also.............The written documents will be the only thing a jury has to look back to refresh their memories in deliberations (most will hear the evidence and arguments differently from all the others...heard of opinions are like a**********? Well every juror will have one and their version of the oral arguments in the court room )......something in black and white removes most doubt.

 

 

 

Also remember that a trial will increase their time and cost they have to invest in getting you to pay, by derailing their SJ you just rang their Cash Register for a nice chunk of change........................paying $2,000 - $3000 and a considerable amount of $250+ per hour billable time to collect a $2,000 debt (that they only have $100 invested in ) doesn't make much economic sense. And if the party your pursuing will not be likely to ever pay it ( or is forced to file BK...wiping your expensive win out ) makes even worse economic sense.

 

I'm guessing they will try to con you into some kind of one-sided settlement..... or possibly dismiss (probably just right before trial) before taking a crap shoot before a jury ( a one armed bandit in Vegas  is more predictable than an OKLA jury ). These slimes don't like juries...........they can't really control them like they can the judge's. But don't slack........prepare to put on a dandy trial !

 

If they dismiss.....................pickup a pint of good whiskey on the way home, toss the other half the keys........and plop down in the Easy Chair and ................get plastered !

 

Either way, continued good luck................you must be doing something right because the Dark side of the Force guiding the lawyers and judges in OK have no respect or liking for Pro Se's.

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Good job!!!  I also got by the MSJ, and went to trial where the Plaintiff dismissed first thing because they did not have a witness and the judge disallowed the telephonic witness.  You never know how these things will turn out but for now a small victory!!!   You can call the clerk and see if there are any debt trials that are represented by an atty.

 

You can go watch a few to get a feel of how it will go. Or call a consumer atty in the area and ask if he/she has any trials against Midland in the near future.  At my pre-trial they just tried to settle with me. I was in and out in 5 minutes

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Excellent.  If you defeated their MSJ you have essentially won the case.   Expect settlement offers to start rolling in and just ignore them.  They will likely drop the suit at the last minute just before the trial date.  If they do make it to the pretrial conference and offer a settlement then just say, "No. thanks, I am prepared to proceed to trial."

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This is Love Beal and Nixon's normal pattern............................don't expect them to dismiss till just before trial. Just be prepared in case they get froggy any preparation you do and case law and such you dig up for trial is not wasted and can still be useful for other JDB as the general way these suits are brought are all very similar and revolve around the same points of law and evidence generally. They may as @texasrocker said try to settle....just remember why would they try to settle and not go to trial? ..................Cause they can't get a witness to court to testify (other than by telephone, and you Object big time to that if it's even mentioned), no witness their affidavit is worthless. They will try settling and then just on that court  day.... or a day or two earlier dismiss, last minute.

 

They do this 9 out 10 times.  I read on a board somewhere (can't remember now where the article is, that was over 2yrs ago ) that  they used to try and follow people into arbitration, but after a couple of 20,000 ++ arbitration case fees they don't like that no more.......the story writer was sitting outside the courtroom when they were discussing it with another attorney and LB&N was cussing a blue stream and ranting about arbitration cost, understand they got wallet bit big time.

 

One thing to watch out for in the future is that they may sell your note off to another JDB and the new "buyer" will sue (such is the nature of the JDB Beast).................just remember every subsequent owner has a harder and harder time proving the chain of ownership.

 

Bottom Line is great essentially a win, very few JDB take any case to full trial................there are so few in OK that even fight, for that you are to be congratulated. If more Okies would show up and fight we could create a very hostile and costly  environment in OK for these bottom feeders. Right now the judges and JDB lawyers have no respect for pro se defendants, if this could be changed I'm sure that a great many could be spared this ordeal.

 

This is why I appealed my case...........win, lose or draw a considerable amount of their time and money has been spent over a very small amount, one they can't ever collect, the more times they have to burn time and money the less they will want to push case's against those that push back.

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Thanks for the replies all. And saytar, this has become my little crusade now. I plan on trying to see if I can get the Attorney General to look into this. These judges should not be rubber stamping these cases even if people don't show up or answer. I watched the judge just sign whatever Love, Beal and Nixon put in front of him without reading it over and over and over. They should still have to show they actually have a right for a judgement on these kinds of debt. The AG for MN went after Midland over their affidavit practices, I would like to see ours do the same thing.

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Actually there is somewhere in the statutes (and or Judicial Ethics statutes and law ) that they are supposed to insure that any evidence presented meets the criteria to sustain a SJ. I can't remember right off the top of my head where, but they are suppose to. And no excuse's as this could done by paralegals or court clerks with proper training.

 

RANT ON:

 

Personally I think that if they don't address it in decision when signing a default judgment they are guilty of malfeasance and as such should be hauled before the State Judiciary Board and fines and dismissals given. Problem is that the Board is to cozy and any discipline must be done by the Supreme Court. Really a judge disciplining another judge???? Imagine Holder filing a case against Obama or the IRS  :ROFLMAO2: :ROFLMAO2: Until the discipline is taken out of house and not dependent in any manner on the state courts, but put into a civilian run overview panel the problem will continue unabated.

 

This is why we must all push as we are able to increase resistance to these suits until it clogs the system wheels....at that point a crisis will develop and only that will get the State legislature's attention. Increase the people showing up and fighting the suit from 1% to 15%, that alone would be enough to create one heck of a cluster mess and get some serious attention. And get the JDB's screaming foul as it would start cutting into the "easy" Profits.

 

If you want or need my support ( or want to formally set up something..... I have considered a non-profit legal low income consumer financial litigation association, mainly staffed with paralegals, trained volunteer's and a few young attorney's to provide just one thing ...... low income consumer +-

 

defense against lawsuits with emphasis on JDB suits), just let me know, I'm In.

 

I'd be glad to talk or even meet the state AG, legislature, senate or Gov, anytime, anyplace....I'm not bashful.....or intimidated by such people, most are really little pathetic people with a gift of a GRIFTER........Big fish in Little Pond......in the Big Pond the other fish would devour them.

 

It appears you may be closer to OKC and the Center of Power's. I may be way out, but have no problem making any appearance needed.

 

Anytime your can get a judgment from someone based on incomplete and fabricated "EVIDENCE" then you have a total perversion of justice and the innocent until proven guilty is further out the door than it is already becoming. The reason they don't have PROPER evidence is the fact that the financial institutions that sell this type debt are trying to avoid any liability for selling obviously uncollectable debts and being sued as a party to an action. The majority of these institutions are the big 5....BoA, HNBC, Chase, Citi, Morgan.....all still operating on money GIVEN to them from our taxes, then have the gall to make further money by selling these accounts......accounts and holder's who's taxes in previous years have been given to them for nothing.

 

This is why I fight them............., and will continue doing so if it comes up again. I don't have to..I am in my 60's on disability also and have nothing they can collect on and most likely never will again. My entire life I have never felt that taking advantage of those that CAN'T fight back (most don't have a constant income stream from your own taxes to pay for fighting  against yourself like gov) was right. Beating up and down on those that can't or don't know how to fight back is nothing but cowardice and bullying, there is no honor or respectability in that. 

 

Another thing, with the economy in the toilet as it is now (and may fall further into the septic tank) these issue's are going to exponentially expand in the coming years as those that slid by in 2008 and stayed afloat slowiy get drawn into the cesspool of unsustainable debt. Their boiling frogs.....they just haven't noticed yet.

 

RANT OFF:

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I just had mu Summary hearing yesterday, also, and it, too, was dismissed.  But I'm of the same opinion that at trial I have nothing to show that I don't owe this debt.  Judge dismissed on the grounds that Midland's affidavit only attested to Midland's records, not OC.  But JUdge gave me a heads up and said better have some kind of documents showing why I should not have to fork over money.

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Judge was just upset he couldn't take care of his "folks". In Summary Judgment the burden of ANY proof is on plaintiffs. They are the ones that have to have some documentation that proves they OWN the account...................legally sufficient documents.

 

Manufactured in house affidavits are NOT legally sufficient. That's why he dismissed, it was the only thing he could do..................in my case the judge didn't even look at their documents (or my response with quoted statutes and case law), or just didn't care.

 

This demonstrates that IF the judge is actually doing his job as is prescribed by law that most case's that are defended should be won by defendants.

 

Oh, and congratulations on your win.............your in the 3% that even answer the suit.

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LOL, everyone. Bank of America submitted an affidavit in support of their motion for summary judgment in our foreclosure. As part of that affidavit in Illinois, they have to describe the loss mitigation efforts made, and describe the reason why a borrower does not qualify for a foreclosure alternative.  

 

So this is what a VP for the bank subscribed and swore to, under oath.

 

Borrowers are ineligible for all foreclosure alternatives.

Reason: Borrowers are current on their mortgage.

 

Indeed. Game on, asshats.

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