grayctsv

Sued by Midland Funding Louisiana

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****case updates 3/27/17****

 

1. Who is the named plaintiff in the suit? Midland Funding LLC

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

3. How much are you being sued for? 4700

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

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

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

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 that I recall

9. What state and county do you live in? Louisiana, Pointe Coupee Parish

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

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

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). They have filed a summons and complaint both of which were served on me and I've since responded

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 not.

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. 15 days, already responded

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. I have 2 affidavits from people that Ive never heard of. One has account number And name, but address, etc. The second one has nothing showing I hold the account. I also have a bill of sale with no name, account number, etc. They sent three card statements one for 06/2014, 11/2013, and 12/2013.

 

I am pretty far along in my suit and need some more help. I have done (2) 10.1  conferences with Midland both of which went nowhere. I finally received my request for production documents from them and they objected everything (not surprised). Though, they objected to three of my requests (see requests below) pertaining to credit reporting which come to find out they  actually did report the debt, in short they lied. What are my next steps pertaining to this? 

Today I received a letter stating they will give me until April 28 to supplement discovery, otherwise they will file a motion for summary judgement.  I know they haven't filed yet but I like to stay ahead. Now being in Louisiana where they like to favor MSJ I need a solid defense for opposing MSJ. Could I possibly use the credit reporting lies? Possibly subpoena the two affiants in hopes they'll dismiss? 

My three requests for production:

1. Any and all written communication, received by the plaintiff and/or plaintiffs attorney from the defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiffs and/or plaintiffs attorney accessing of defendants credit report(s).

2. Any and all communications from plaintiff and/or plaintiffs attorney to he defendant explaining why plaintiff and/or plaintiffs attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendants credit report(s).

3. Any and all credit report(s) plaintiff and/or plaintiffs attorney obtained from any credit reporting agency concerning the defendant. 

Plaintiff response to all three requests: eaton group attorneys do not report to any credit reporting agency.

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You've indicated that you're pretty well into this case, so take care not to get off track focusing on irrelevant matters. "A summary judgment is appropriate when there remains no genuine issue as to material fact and the mover is entitled to judgment as a matter of law." Carr v. Wal-Mart Stores, Inc., 772 So. 2d 865 (La. Ct. App. 2000). What facts do you have that you can use to show that there are "genuine issues of material fact" that preclude the entry of summary judgment. Look at the complaint. Do you have proof that any of the allegations in the complaint are not true? Have you requested discovery necessary to the defense of your case and been stonewalled by Plaintiff?

 

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I had requested discovery from plaintiff in which they objected to everything and received documents as follows:

-a bill of sale from Citibank selling to MCM signed patricia hall

- an affidavit from Citibank, also notarized signed Patricia hall 

- sale of conformity, I think that's what it's called I don't have in front of me signed Patricia hall 

- a printed page with name, account number, date opened, etc. very simple could have made myself. 

- 3 credit card statements for alleged account dated 11/13, 12/13, 06/14

- lastly another affidavit from someone who allegedly works at Midland signed Karli Peterson 

As far as proof to deny allegations I don't have any "hard" evidence disproving. Just the standard bs forms they send everyone signed by people who may not exist. I had read on here that a few people subpoenaed the person(s) signing affidavits, forcing the JDB to give up. As I stated above they objected to reporting to credit bureaus, but I checked last night and they most certainly do report. Their last report was made on 04/11/16, not sure if this has any grounds for opposition. 

Just trying to have a firm opposition because most case laws for these kind of lawsuits in Louisiana are in favor of plaintiff. Mainly because saying those documents are fake or I don't know that person doesn't have much legal ground. 

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27 minutes ago, grayctsv said:

As I stated above they objected to reporting to credit bureaus, but I checked last night and they most certainly do report. Their last report was made on 04/11/16, not sure if this has any grounds for opposition.

The credit reporting angle is irrelevant to Midland's claim or your defenses thereto.

 

27 minutes ago, grayctsv said:

a few people subpoenaed the person(s) signing affidavits, forcing the JDB to give up

Noticing affiants for deposition is a sound practice.  As a pro-se litigant, are you prepared to depose out of state witnesses?

Are you able to provide any documents capable of being authenticated which contradict plaintiff's claim? Can you truthfully submit an affidavit denying any allegations relating to your used of the sued-upon account? Finally, did you include any affirmative defenses in your answer? If so, can you prove them up?

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Can you post up redacted copies of the documents they sent to you?  The devil's in the details, as they say.  A lot of times, they send a "bill of sale", which contains literally nothing that identifies you or the supposed debt specifically.  If we can see exactly what they sent you, it might help in your opposition of a MSJ.

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@grayctsv if you can post their affidavits and other docs with personal detail redacted that might help. Does Louisiana allow adoptive business records?

I didn't read all of @BV80's cases but the last one mentioned "Although the document was hearsay, DelCorral did not object to its introduction." Midland found something on the internet, printed it out and that helped make their case.

Do the affidavits stand up to Louisiana evidence code section 803 (6), Code of Civil Procedure 967?

https://legis.la.gov/legis/Law.aspx?d=72513

http://law.justia.com/codes/louisiana/2011/ccp/ccp967

 

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Here's one where Capital One could not show the affiant ever reviewed any documents. Summary Judgment reversed.

Capital One Bank (USA), NA v. Sanches, 119 So. 3d 870 - La: Court of Appeals, 4th Circuit 2013

https://scholar.google.com/scholar_case?q=Capital+One+Bank+%28USA%29,+NA+v.+Sanches&hl=en&as_sdt=40006&as_vis=1&case=13797512431481374711&scilh=0

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What is posted above is all they have sent except for a bill of sale and assignment, signed by Patricia hall and doesn't have any of my information on it.

@nascar I have no documentation to disprove any evidence they have shown.  I was thinking of doing my own affidavit denying any allegations. Lastly my best option is to subpoena duces tecum both affiants if they exist and get a deposition.

@kraftykrab documents posted above

@BV80 I believe I read two of those cases in another post you responded to. The losses are why I'm looking for evidence to disprove their so called "evidence." I'm going to have to read the other two tomorrow and go over the others again.

@Happybluesky I have not responded yet as they haven't filed MSJ yet. Look at document above to see where they threaten it.

@CCRP626 I am not sure on adoptive business records. I do believe the affidavits stand up as evidence in Louisiana. Hence the reason I'm thinking of subpoenaing? the two affiants in hopes they don't exist/respond, then I can strike the affidavits from the case leaving the JDB with nothing. 

Thank you everyone for all of your help, let's keep the ideas going. I'm going to review the cases above and hopefully find a few more to see where others went right or wrong with their suit. Hopefully I/we can win this. 

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@grayctsv

Read the Encore/Midland Order issued by the CFPB.  It states what Midland is to provide if it files a lawsuit and the lawsuit is contested.   I don't believe Midland has provided what is required by the CFPB. 

If you're opposing an MSJ, I suppose you'd need to include what has been cited by the CFPB and note that Midland has not included the required documentation.

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Bear in mind that defeating an MSJ is usually pretty easy.

But that is a long way from winning.

A valid defense is the basis for overcoming an MSJ, and is essential for winning a case.

What is your defense?

 

 

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@BV80 @nascar  The affidavit just says in para 5 "The documents attached..."    How can that fly?  They could attach all kinds of stuff and the affiant has sworn that she has reviewed them and did it under penalty of perjury.  Is that a valid point to attack?  Ask her to testify to what she attached to the affidavit?

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@CommoSGT that's how I feel about the affidavit also. I had read through the encore/midland order issued by CFPB and it states that a lot of suits are filed with affiants never verifying documents. Heck they could be robo-signed, they've been sued over that too. Right now it seems my best defense is to subpoena the affiants and hope they don't respond/exist or hope they will dismiss the case. 

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41 minutes ago, CommoSGT said:

Ask her to testify to what she attached to the affidavit?

Ultimately, that is what one would prefer to do. On summary judgment, though, in the absence of deposition transcript or other contradictory evidence, competing affidavit is about as good as it gets. 

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3 hours ago, grayctsv said:

@CommoSGT that's how I feel about the affidavit also. I had read through the encore/midland order issued by CFPB and it states that a lot of suits are filed with affiants never verifying documents. Heck they could be robo-signed, they've been sued over that too. Right now it seems my best defense is to subpoena the affiants and hope they don't respond/exist or hope they will dismiss the case. 

Look at i and iii on page 35 of the Encore Order.

It says in "i" that if Midland files a lawsuit, they must have "original account-level documentation" reflecting certain details.  "Original account-level documentation" means docs they got from the creditor.   Where are those docs?

What's written in "iii" regarding bills of sale is very interesting.

Have you checked your bank records to see if you made a $93.94 payment in Oct., 2013?

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4 hours ago, CommoSGT said:

The affidavit just says in para 5 "The documents attached..."    How can that fly?  They could attach all kinds of stuff and the affiant has sworn that she has reviewed them and did it under penalty of perjury.  Is that a valid point to attack?  Ask her to testify to what she attached to the affidavit?

I guess I'd point out that the "documents attached" are Midland documents.   There's nothing from the OC that reflects what Midland is claiming. 

The affiant swears that she has "reviewed the records pertaining to the account", yet there is no evidence she reviewed any records other than records created by the plaintiff.

The attached billing was created by the plaintiff.  Again, the plaintiff has offered nothing from the OC that reflects the alleged balance.   The same goes for the bill of sale.

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Technically they haven't filed the MSJ , they don't plan to  until at least April 28. If I were to subpoena the affiants before then discovery would still continue. Am I correct or overlooking something?

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@BV80 I have never received any originals or anything that appears to be from original creditor. In their response to my request for production they stated all they had was sent to me, all of which is posted above. I can post that tonight too if you think that will be of any help.

For the bill of sales, how would I go about trying to obtain said original copies? Subpoena the alleged affiants? Ask Midland (lol)?

I have no idea on the payment, I've moved and switched banks multiple times since October of 2013.

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28 minutes ago, grayctsv said:

@BV80 I have never received any originals or anything that appears to be from original creditor. In their response to my request for production they stated all they had was sent to me, all of which is posted above. I can post that tonight too if you think that will be of any help.

For the bill of sales, how would I go about trying to obtain said original copies? Subpoena the alleged affiants? Ask Midland (lol)?

I have no idea on the payment, I've moved and switched banks multiple times since October of 2013.

What did you request from Midland?

 

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