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Sued by Midland


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Hello all,

I have been doing research on this and I am very happy I came across this site, it seems to have a lot of useful information fighting off  JDBs.

 

First I would like to thank all of you in advance for any assistance.

 

Basically I am being sued by Midland Funding, had my pre-trial hearing a couple of weeks ago, since discovery is not an option in my state, the attorney asked if we could settle and I refused, so I was handed a stack of papers and the judge set the trial date.

This is what they provided me with:

1) A bill of sale - from the original creditor (or OC) stating that all accounts in Exhibit A were sold/transferred to Midland.  However, there is nothing in Exhibit A the accounts were Redacted.

 

2) Affidavit of sale from the Finance Manager of OC- stating that a pool of accounts were sold to Midland.

 

3) Certificate of Conformity- basically a letter from an attorney stating that the person in the affidavit and the notary are who they say they are.

 

4) A printout stating "Data printed by Midland Credit Management from electronic records provided by OC pursuant to the bill of sale/ assignment of accounts transferred on or about the (date) in connection with the sale of accounts from OC to Midland." 

 

            This data sheet includes: my name, account number, open date, charge off amount, charge off date, address, phone number (which is wrong), last payment, last payment date, last purchase date, and sale amount. 

 

5) Two original statements seven months apart, from the OC.

What are my chances of beating this?  Do I need to file anything with the court prior trial?  I am assuming the court has these documents, do I wait until trial to challenge them or could it be done before trial?  

Again any help would be greatly appreciated.  

Thank you.  

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@Ford_Dude can you answer these questions, please?

 

Do you have a cardmember agreement from when the account was active? If not, check here for one and look to see if there is an arbitration clause. http://www.consumerfinance.gov/credit-cards/agreements/

Check the CFPB Midland consent order for their compliance as well-

http://www.consumerfinance.gov/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/

http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

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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.) 

3. How much are you being sued for? $4,867.

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

5. How do you know you are being sued? (You were served, right?) Served.  Had pre-trial hearing.  

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

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

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? NH.  Hillsborough.  

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Documents provided state 2014.

11. What is the SOL on the debt? To find out: 3 Years.  

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).  Pending trial.  

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? Already done, case is pending trial.  

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. 

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One thing in your favor is you can't find your account number or reference to you in the sale documents. That would be in violation of the CFPB order. page 35-

A certified or otherwise properly authenticated copy of each bill of sale or other document evidencing the transfer of ownership of the Debt at the time of Charge-off to each successive owner, including Encore. Each of the documents evidencing the transfer of ownership of the Debt must include a specific reference to the particular Debt being collected upon

I'd go through that order finding what you need to help your case and take it with you to your court date. Parties shall bring to the trial all witnesses, documents or other evidence upon which they intend to rely to prove or defend their case.

I'm not familiar with NH or its small claims rules but if you posted earlier I think it might have helped. You said you were already at the pre-trial hearing and discovery was not an option but it sounds like it was available but too late now-

Formal discovery, such as interrogatories, depositions, requests to produce documents, requests for admissions and other forms of discovery are not permitted in small claims cases unless ordered at the pre-trial hearing.

 

Citibank also has its own issues with debt sales and altering documents.

http://www.consumerfinance.gov/newsroom/cfpb-orders-citibank-to-provide-relief-to-consumers-for-illegal-debt-sales-and-collection-practices/

 

 

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Thank you @CCRP626

I actually requested discovery at the pre-trial hearing but the judge said they are not permitted and then asked the attorney if they have provided me with all documents pretending to the case.  Which the attorney did provide me with the documents listed above.  

I will definitely go through the order you mentioned above.  Thanks a lot @CCRP626 

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  • 3 weeks later...

As I am preparing for trial, which is coming up next week, I am hoping someone can answer this for me.

In New Hampshire rules of evidence do not apply.  Does this mean I am pretty much screwed as far as challenging the affidavits and statements from the original creditor as "hearsay?"   THANK YOU!

Rule 4.5. Discovery and Rules of Evidence

  Formal discovery, such as interrogatories, depositions, requests to produce documents, requests for admissions and other forms of discovery are not permitted in small claims cases unless ordered at the pre-trial hearing. The Rules of Evidence shall not apply in small claims cases.

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If you go to court, just challenge them like you would otherwise. If the bill of sale doesn't identify you, point that out for standing. Check New Hampshire law/case law in Google Scholar for similar cases. I'd also bring up the CFPB order and use it. If the rules are relaxed and it could be considered relevant, this increases the chances of the Judge considering it.

One other thing you can do is consider going for private arbitration. Here's a recent NH case that should help- http://www.creditinfocenter.com/community/topic/327173-please-help-being-sued-by-midland-funding-llc/

If you are just now finding a cardmember agreement this should weigh in your favor that you did not waive your right to arbitration. If you decide on arb, you need to do this ASAP, well before trial.

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@Ford_Dude

Do you have any of your own evidence to rebut theirs? Anything in your records (or theirs) that shows a discrepancy or dispute?  I am not a lawyer, but I don't believe you can't point out to the judge that their "evidence" doesn't show what they claim it shows--that they lack sufficient documentation to prove standing, liability and damages.  This may effect the weight the judge gives to their "evidence." You may find some helpful arguments in here:

http://www.naela.org/NAELADocs/PDF/NALI/BO%2011NALI%202013%20Debt%20Collection%20Hands%20On%20Practice_AL%20format_LINK.pdf

This may not help you at all, but I thought this quote was insightful:

'Defense Counsel: “I am not objecting on the ground that the sources of information or the method or circumstances of preparation indicate lack of trustworthiness. Rather, I am objecting on the ground that they are not even business records within the scope of 5-803(b)(6) to begin with.”'

• If it is the Debt Buyers’ Regular Practice to “Make and Keep” Business Records of Prior Assignors, Then Why are They Always Missing so Many Documents?
• Why do They Not Already Have “the Media”?
• Why do They Have to Pay for Bank Statements, if Their Prior Assignors Made and Kept Them?

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On 4/22/2016 at 2:07 PM, Brotherskeeper said:

@Ford_Dude

Do you have any of your own evidence to rebut theirs? Anything in your records (or theirs) that shows a discrepancy or dispute?  I am not a lawyer, but I don't believe you can't point out to the judge that their "evidence" doesn't show what they claim it shows--that they lack sufficient documentation to prove standing, liability and damages.  This may effect the weight the judge gives to their "evidence." You may find some helpful arguments in here:

http://www.naela.org/NAELADocs/PDF/NALI/BO%2011NALI%202013%20Debt%20Collection%20Hands%20On%20Practice_AL%20format_LINK.pdf

This may not help you at all, but I thought this quote was insightful:

'Defense Counsel: “I am not objecting on the ground that the sources of information or the method or circumstances of preparation indicate lack of trustworthiness. Rather, I am objecting on the ground that they are not even business records within the scope of 5-803(b)(6) to begin with.”'

• If it is the Debt Buyers’ Regular Practice to “Make and Keep” Business Records of Prior Assignors, Then Why are They Always Missing so Many Documents?
• Why do They Not Already Have “the Media”?
• Why do They Have to Pay for Bank Statements, if Their Prior Assignors Made and Kept Them?

That was a really good find.  Not always easy to find pointers on for debt collection trials.

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1 hour ago, Ford_Dude said:

You guys are awesome!  Thank you!

Today I received a letter via email that was filed by the plaintiff.  They basically said "plaintiff takes a voluntary nonsuit"  I am afraid that they are going to sue me again in the future?  

:)% If they do  file again, you'll be much better prepared. 

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