Midland funding lawsuit in CT

[saint_123]

Bear with me if this appears incoherent since I am new to the debt lawsuit business. I will try to be a bit elaborate since I don't know what to make of the pre-trial conference.

 

I have been lurking around the last week or two after being hit by a lawsuit to collect on an alleged chase card debt. Howard Lee Schiff is handling this on behalf of Midland funding. I appropriately responded to the summons with diagree and do not know answers to the charges.

 

I then contacted the law office to provide proof of debt but did not receive anything. The pretrial conference today was very interesting (6/5/15 - my first!). The opposing lawyer was present and apparently a court appointed representative (possible the judge but just as likely some other lawyer) administered the conference. The opposing lawyer introduced the lawsuit and amount of debt in question. When asked I denied any knowledge of the debt and mentioned that I had repeatedly asked for proof of debt and had not received any evidence.

The 'judge' inquired the opposing counsel who promptly forwarded me a stack of unsigned statements. The judge asked if there was a signed agreement to which the counsel referred to some past case and highlighted that the OC does not need to keep signed agreements beyond 4 years and that the statements printed were enough to prove the debt was owed. The judge did not object to it. She also turned to me to ask if the name on the statement was mine. I nodded yes. She then inquired if the address on the statement was mine. I replied with "cannot confirm" and will have to check records. I asked that I be given time to review the presented evidence. The judge asked if I was employed and whether I owned any property.

 

Just when I thought this was coming to an end, the judge sought to talk to each party individually. He asked me if there were other lawsuits, suggested that it seemed the debt was owed and suggested that the best mode is to settle and be done with it. He een asked me to quickly review the pile to see if there were any signed documents - there were none. I told him that as long as I could affirm that I owed this debt, I was open to talk.

 

After a few minutes of conversation with the opposing counsel, we were both called in. He admonished us again to talk and settle and proceeded to fill a form - the "scheduling order". He started aloud by calling out loud "written discovery" and the lawyer instantly and eagerly latched on to say "DONE". The judge agreed. I found that very odd and uncomfortable since I did not exactly know how discovery was complete! (Arn't I suppose to ask a bunch of questions regarding the lack of ownership and lack of proof of debt???) I tried to ask the judge to educate me on that and he duly referred me to the librarian on the 2nd floor . The opposing counsel seemed overly amused. Long story short, he scheduled a date for fact finding meeting - he also mentioned the word "deposition" which I still need to find the meaning for . We left the court house.

 

This may be my gut but the lawyer seemed rather friendly with the people in the court house and the fact that the "judge" did not object to any (lack of) evidence presented seemed ominous - perhaps this wasnt the right forum for him, I don't know. Anyway, the lawyer wore a fake, almost condescending, smile all the time.

 

The relevant portion of the order is pasted below: The questions in my mind are:

           How should I feel about this so far.

           Did I miss a trick somewhere so far?

           What should be my next steps now that I have a breather?

           Is CT a friendly state to debt collectors in general?

Please advise so that I can bring my heart rate to normal Thanks

 

FACTS: 1) there is no signed (or unsigned) agreement presented 2) there was no evidence showing that midland bought this specific account 3) there were almost a year worth of unsigned statements.

_____________________________________________

The following order is entered in the above matter:
ORDER:
Scheduling Order
Written discovery shall be served on or before: done
Depositions of fact witnesses accomplished by: n/a
Disclosure of plaintiffs experts by: n/a
Depositions of plaintiffs experts by: n/a
Independent medical exam accomplished by: n/a
Disclosure of defendants experts by: n/a
Depositions of defendants experts by: n/a
Motions for summary judgment to be filed by n/a
Motions for summary judgment to be argued by: n/a
Other scheduling orders:

[BV80]

@saint_123

 

For how much are you being sued?  Who is the original creditor?

[debtzapper]

What you experienced is not all uncommon.  Most judges are on very friendly terms with debt collection lawyers.  In many courts, collection lawsuits comprise most of the civil docket.  Judges are used to routinely handing out default judgments 95% of time because most defendants never show up.  

[debtzapper]

This is a Midland Funding trial court lawsuit from 2005.  Midland lost this case because the court held that the evidence presented did not justify summary judgment.

 

https://www.nclc.org/images/pdf/unreported/Harrell.pdf

 

 

 

 

That same lack of authentication is present

in this case as well, and thus the plaintiff has

failed to prove that there is no genuine issue of

material fact regarding liability and damages.

The defendant does not admit that he entered

into an agreement with American Ski Company.

The plaintiff has not produced a copy of the

signed agreement or credit application between

the defendant and American Ski Company. The

affidavit of Autumn Hopkins, the plaintiff's legal

coordinator, merely avers that she "has access to

the records of Unifund CCR Partners and

therefore has personal knowledge of the facts"

as set forth in the affidavit of debt. There are,

however, no authenticated copies of business

records reflecting the amount claimed due or the

defendant's failure to make payments.

Applying the "stringent standard" for the

granting of summary judgment; New Haven v.

Pantani, supra, 89 Conn.App. 680; the plaintiff

has not met its burden of proof and its motion

for summary judgment is denied. The motion is

denied, however, without prejudice to refiling

provided the standards outlined in New Haven v.

Pantani are followed.

So Ordered.

William B. Lewis, Judge T.R.

[debtzapper]

This is a 2014 CT Appeals court affirming summary judgment for the plaintiff JDB because the defendant did not file a sworn affidavit showing there remained material issues in dispute.  The court held the plaintiff's affidavit, statements and assignment were sufficient under CT law to find in favor of the plaintiff.

 

 

https://scholar.google.com/scholar_case?case=3829819933369420111&q=credit+card&hl=en&as_sdt=4,7&as_ylo=2011s

 

 

The plaintiff appended to the motion a sworn affidavit of an administrative manager of the plaintiff, Mary LeBental, who averred that the defendant defaulted on the subject credit account and that the plaintiff owned the account and was entitled to collect the debt. Accompanying the affidavit of LeBental were copies of monthly statements of the subject account for the period from June, 2008 through November, 2009, as well as two assignment agreements that documented the sale of unpaid credit accounts from Chase to the plaintiff.^[6]

 

 

 

 On the basis of this evidence, the plaintiff has met its burden of demonstrating that there is no genuine issue of material fact as to ownership. Because the defendant has not filed a counteraffidavit with the court or any other documentary evidence demonstrating the existence of a genuine issue of material fact, as required by Practice Book § 17-45, the trial court properly granted the motion for summary judgment. Stated differently, the defendant has failed to show the existence of a factual question that justifies a trial.

Although the defendant filed an objection to the motion for summary judgment in which he argued that there was a genuine issue of material fact as to the plaintiff's ownership of the debt,^[ our rules of procedure make clear that an unsworn and conclusory assertion is insufficient to defeat a motion for summary judgment. See Practice Book § 17-45; 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994) ("existence of [a] genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidenc

[saint_123]

@saint_123

 

For how much are you being sued?  Who is the original creditor?

 

~ 8K - Chase

[saint_123]

 

This is a Midland Funding trial court lawsuit from 2005.  Midland lost this case because the court held that the evidence presented did not justify summary judgment.

 

https://www.nclc.org/images/pdf/unreported/Harrell.pdf

 

 

 

 

That same lack of authentication is present

in this case as well, and thus the plaintiff has

failed to prove that there is no genuine issue of

material fact regarding liability and damages.

The defendant does not admit that he entered

into an agreement with American Ski Company.

The plaintiff has not produced a copy of the

signed agreement or credit application between

the defendant and American Ski Company. The

affidavit of Autumn Hopkins, the plaintiff's legal

coordinator, merely avers that she "has access to

the records of Unifund CCR Partners and

therefore has personal knowledge of the facts"

as set forth in the affidavit of debt. There are,

however, no authenticated copies of business

records reflecting the amount claimed due or the

defendant's failure to make payments.

Applying the "stringent standard" for the

granting of summary judgment; New Haven v.

Pantani, supra, 89 Conn.App. 680; the plaintiff

has not met its burden of proof and its motion

for summary judgment is denied. The motion is

denied, however, without prejudice to refiling

provided the standards outlined in New Haven v.

Pantani are followed.

So Ordered.

William B. Lewis, Judge T.R.

 

 

This is a 2014 CT Appeals court affirming summary judgment for the plaintiff JDB because the defendant did not file a sworn affidavit showing there remained material issues in dispute.  The court held the plaintiff's affidavit, statements and assignment were sufficient under CT law to find in favor of the plaintiff.

 

 

https://scholar.google.com/scholar_case?case=3829819933369420111&q=credit+card&hl=en&as_sdt=4,7&as_ylo=2011s

 

 

The plaintiff appended to the motion a sworn affidavit of an administrative manager of the plaintiff, Mary LeBental, who averred that the defendant defaulted on the subject credit account and that the plaintiff owned the account and was entitled to collect the debt. Accompanying the affidavit of LeBental were copies of monthly statements of the subject account for the period from June, 2008 through November, 2009, as well as two assignment agreements that documented the sale of unpaid credit accounts from Chase to the plaintiff.^[6]

 

 

 

 On the basis of this evidence, the plaintiff has met its burden of demonstrating that there is no genuine issue of material fact as to ownership. Because the defendant has not filed a counteraffidavit with the court or any other documentary evidence demonstrating the existence of a genuine issue of material fact, as required by Practice Book § 17-45, the trial court properly granted the motion for summary judgment. Stated differently, the defendant has failed to show the existence of a factual question that justifies a trial.

Although the defendant filed an objection to the motion for summary judgment in which he argued that there was a genuine issue of material fact as to the plaintiff's ownership of the debt,^[ our rules of procedure make clear that an unsworn and conclusory assertion is insufficient to defeat a motion for summary judgment. See Practice Book § 17-45; 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994) ("existence of [a] genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidenc

Thanks debtzapper. I will delve into your links further to try to get the do's and dont's. Given your experience, what do you feel would be the appropriate next steps? Motions/more evidence requests? etc.

[Clydesmom]

I found that very odd and uncomfortable since I did not exactly know how discovery was complete! (Arn't I suppose to ask a bunch of questions regarding the lack of ownership and lack of proof of debt???)

 

No.  Discovery is when you can ask for the evidence the opposing party is going to use at trial or to support their case.  What you are referring to is CHALLENGING their evidence as not meeting the necessary burden of proof and that is done at the trial.

 

 I tried to ask the judge to educate me on that and he duly referred me to the librarian on the 2nd floor  . The opposing counsel seemed overly amused. 

Anyway, the lawyer wore a fake, almost condescending, smile all the time.

 

 

The judge by law cannot educate you on how to defend yourself in a lawsuit.  If you are not going to hire a lawyer then you have to educate yourself on how to be your own lawyer and a couple of weeks reading threads on a website won't do it.  It takes HOURS and HOURS of research to hope to be able to adequately defend yourself against trained lawyers.  

 

The opposing attorney is amused because you basically went in and demonstrated you are clueless as to the rules of civil procedure and what to do in a lawsuit. He is smiling because you are handing him an easy judgment based on your lack of knowledge.

 

FACTS: 1) there is no signed (or unsigned) agreement presented 2) there was no evidence showing that midland bought this specific account 3) there were almost a year worth of unsigned statements.

 

FACT:

 

1)  There doesn't need to be a signed agreement and the courts in all 50 states are acutely aware that none exists in a credit card debt case.  The judge is not going to be looking for one especially since Midland's lawyer successfully defeated your challenge on the issue already.

 

2)  THIS is a basis to fight on but you have to know how to challenge their standing as well as how to introduce and object to evidence.  Start studying up on the rules of civil procedure for CT.  

 

3)  NO credit card statements are signed and they do not have to be.  The court isn't going to expect it and this is a waste of time.  

 

What should be my next steps now that I have a breather?

 

Hire a lawyer or start studying A LOT on how to defend yourself.  

 

[debtzapper]

@saint_123

 

You asked what the next steps should be.  I would at least consult with a consumer lawyer.  A consultation is free.  Here is a link to one that charges a flat fee.  Studies show debtors do much better when represented by counsel.  You are being sued for a lot of money so you can expect to be pursued aggressively by Midland.

 

http://www.rdw-law.com/Practice-Areas/Credit-Card-Collection-Defense.aspx

 

 

 If you are going to represent yourself, then you will have spend time working at it.  

 

 

Ct law libraries debt collection info:

 

 

http://www.jud.ct.gov/lawlib/law/debt_collection.htm

 

 

 

 

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This is a link to a  Univ of CT Law School Prof  who teaches consumer law. Sometimes law school students and faculty will represent debtors if you meet certain criteria.  Contact him to see what they can do.

 

https://www.law.uconn.edu/sites/default/files/faculty-cvs/Jimenez,%20D.%20CV.pdf

 

 

CT. Legal Services offers its services if you meet certain criteria:

 

http://www.connlegalservices.org/gethelp.htm