grayctsv

Sued by Midland Funding Louisiana

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Midland and consumer didn't dispute within 60 days- start at page 6 of 19

http://www.law.gonzaga.edu/files/Jarzombek-Defending-Debt-Collection-Suits.pdf

If the JDB is saying they don't have any records but is also saying you didn't do things like dispute an account, where are they basing this from?

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The dispute the earlier Response to Discovery paper was referring to was billing statement disputes with the original creditor. What I was getting at there is Midland wouldn't have any idea what you did with the original creditor. That's hearsay. They are also saying the records that were never part of their business are no longer around, so how are they coming to these conclusions about what you did with another company. They also say they were already sent previously. How do they know this? Conclusory.

Plaintiff‘s position that the TILA deprives the consumer of defenses is not only contrary to the statute it relies on and the dispositive interpretation of the FRB, but constitutes another effort to evade the normal burden of proof on a contract claim.

The dispute referred to in the CFPB page is when Midland sends you the letter in the mail with the debt validation notice. Midland and the their attorneys would be covered under the FDCPA.

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15 hours ago, grayctsv said:

If I were to subpoena the affiants before then discovery would still continue.

If the court has issued a discovery deadline, simply issuing deposition subpoenas would not necessarily extend discovery. If there's a deadline, all discovery must be complete by that deadline, absent an extension. However, if you're attempting to depose certain witnesses regarding the veracity of their affidavits, you should be able to use that to delay any motion for summary judgment. I am by no means an expert on the application of Louisiana Civil Code, but I think Art. 966(3) would apply in the same manner as similar rules apply in other states:

 "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law."

The way this works is that, if you're trying to obtain discovery necessary to your defense of a summary judgment motion, and the other side is stonewalling you or you have not otherwise had an opportunity to conduct discovery, you can move the court to deny or continue (or whatever they call it in your area) the summary judgment motion until you've had "an opportunity for adequate discovery," setting forth in your motion or response the subject matter of the discovery you are seeking and what you believe discovery will reveal.

Since a 1997 amendment to Article 966, Louisiana's standard for summary judgment has been closely aligned with the federal standard under Fed. Rule Civ. Proc. 56(c). When sufficient time has been allowed for discovery, the courts will assess the proof submitted by the parties equally, without the former presumption in favor of trial on the merits, in order to dismiss meritless litigation. Hardy v. Bowie, 98-2821, pp. 4-5 (La.9/8/99), 744 So.2d 606, 609-610, quoting Hayes v. Autin, 96-287 (La. App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.  

If Louisiana courts track the federal standard, such a motion should work. In federal court, it is referred to as a Rule 56(d) motion and, as long as you can adequately support the relief requested in the motion, it should be granted. Keep in mind though, that if you're granted such relief and don't follow up on it, judge is not going to be happy camper.

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@nascar the court has not set a discovery deadline, the attorney has threatened to file their MSJ on or around that day. I would be continuing discovery to depose the affiants regarding their supposed affidavits. 

@CCRP626 I really don't know how they can say I ever received anything especially if it wasn't sent certified, let alone exists anymore. 

So what is my best defense?

1) Subpoena the affiants and try to file motion to strike affidavit of debt and file motion to dismiss.

2) create my own affidavit denying allegations

argue the fact of no original account level documentation

all documents sent are made by midland not original creditor.

Ccrp626 defense above for documents received "Plaintiff‘s position that the TILA deprives the consumer of defenses is not only contrary to the statute it relies on and the dispositive interpretation of the FRB, but constitutes another effort to evade the normal burden of proof on a contract claim."

this option only leaves denials no actual proof to stand behind

3) all of the above

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23 minutes ago, grayctsv said:

I would be continuing discovery to depose the affiants regarding their supposed affidavits. 

In that case, I would suggest that you do so before the motion is filed. Waiting until after the motion is filed may give the appearance that your request is simply intended to delay.

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If I were to subpoena should I serve both affiants or just the citibank rep with bill of sale and all the documents. Also should I subpoena the witness and have her testify or duces tecum?

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28 minutes ago, grayctsv said:

If I were to subpoena should I serve both affiants or just the citibank rep with bill of sale and all the documents. Also should I subpoena the witness and have her testify or duces tecum?

First, you have to determine whether the affiants are represented by plaintiff's counsel. If so, then all you need to do is arrange a date, time and place convenient to the parties and send notice of deposition to plaintiff's counsel. If, after conferring (or attempting to confer) with plaintiff's counsel, you learn that he/she does not represent the affiants, then you would need to have them served with a subpoena. Since they are probably employees of Midland, I suspect  you'll find that Plaintiff's counsel does in fact represent them in this matter. In any case, be prepared for them to oppose or stonewall any attempt to depose these folks.

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As far as I know the affiant I would like to depose is a worker of Citibank not midland.

I'm not quite sure what I am supposed to do from here on.  Do I send a letter similar to 10.1 conference stating that I would like to compose a deposition with Patricia hall via telephone conference with date and time? I've looked at Louisiana laws for depositions and it's not very precise. 

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1 hour ago, grayctsv said:

As far as I know the affiant I would like to depose is a worker of Citibank not midland.

I'm not quite sure what I am supposed to do from here on.  Do I send a letter similar to 10.1 conference stating that I would like to compose a deposition with Patricia hall via telephone conference with date and time? I've looked at Louisiana laws for depositions and it's not very precise. 

Have you read this?

http://www.palmintierlaw.com/speeches.php?id=37

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@debtzapper I just finished it and I must serve a notice to plaintiff. If they do not represent the affiant then I would need to subpoena her. 

My next question is, am I required to use a court reporter to record the deposition of can I just record it myself?

Lastly, does anyone have a sample motion to depose witness? I haven't found many. 

 

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1 hour ago, grayctsv said:

My next question is, am I required to use a court reporter to record the deposition of can I just record it myself?

You must use someone authorized to record depositions in the state where it is being taken.

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@grayctsv if you head to your local law library with subscription access to NACA (National Association of Consumer Advocates) files, you'll find some deposition questions defense attorneys use against "custodians".

For your discovery, has it ever come up for them to disclose any additional documents they intend to produce or witnesses for trial? Not sure if Louisiana has a law on this but some other states if it's for a high enough amount (past small claims) have to disclose this as a requirement without asking.

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I have a question for anyone that can help. I cannot afford to take time off work and spend the money for depositions so I've decided to oppose the motion for summary judgement.

I'm looking at the motion they have threatened to file and had a question regarding the part about discovery. I answered their first set and objected to them, pretty much the same as they did my requests. I'm going to post a picture of the motion but my question is regarding the last two paragraphs about discovery. Do I have to do it again, or do I oppose the judgement with my reasons and case laws? I know it's not yet filed with the courts but I hope to have this done before I do receive it. 

 

image.jpg

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@grayctsv

You might need to copy the Order between Midland and the CFPB.   While the Order is not precedent, it should be persuasive.  To date, Midland has not provided "original account-level documentation" (see definition on page 4 of the Order) reflecting your name, last 4 digits of the account number, etc. (see page 35 of the Order).  That would mean a credit card statement.   Nor have they provided a bill of sale that includes "a specific reference to the particular Debt being collected upon" (page 35 of the Order).

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@BV80

so I should wait for them to file motion with court house and use the Order as my main defense? I looked up many cases today for defenses and ready to type up a opposition. I'm  just trying to figure out if I must answer discovery again or wait until they file motion. 

They had sent statements but they're all "copies" and a bill of sale that doesn't mention name, account, social security, etc.

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49 minutes ago, grayctsv said:

@BV80

so I should wait for them to file motion with court house and use the Order as my main defense? I looked up many cases today for defenses and ready to type up a opposition. I'm  just trying to figure out if I must answer discovery again or wait until they file motion. 

They had sent statements but they're all "copies" and a bill of sale that doesn't mention name, account, social security, etc.

You still have to write an opposition with supporting case law once the motion is filed.  The CFPB could be part of or help support your defense.

By "original account-level documentation", copies of credit card statements will probably suffice.  "Original" just means statements that would have been created by the OC.   It would not mean a summary created by Midland.  The originals were actually sent to you. 

However, the credit card statements they provided must be authenticated.  Check the business records exception in your rules of evidence.

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If you haven't already done so, I think I would file a complaint with the CFPB against Midland for its failure to include the required documentation per the Consent Order.  

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@grayctsv so they're mad you objected to requests for documents and want to compel you to cough them up? If you don't have them, you don't have them and you're continuing to look for them as the discovery rules require. You're not the one with the CFPB order against you though. Maybe they need their own Motion to Compel?

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@CCRP626

yes it seems that they want me to compel me to answer something I don't have answers to. Yet they still haven't proven they own the debt or its mine. What would I request from them with a motion to compel? They answered my request for production but objected to everything and submitted the same old "documents."

@BV80

I believe they "authenticated" their statements with the affidavits they sent from people that probably don't exist. I will look into business rules exception for Louisiana. I'm going to draw up my opposition this weekend, I will post it up before I send. 

@debtzapper

I will look into filing a complaint 

 

thanks for the help everyone, I'm sure I'll need some more guidance

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@grayctsv another thing to focus on is that potential motion in limine where they'll attempt to limit what you can use. You can format your reply along the lines of you've provided everything you have and will supplement if you find any documentation along the lines of CCP 1428.

Study that CFPB order. It has specific rules Midland has to follow to start any lawsuit. If you ask for those specific documents in the form required and Midland does not comply that would be a violation. The bill of sale is one of those. 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."

That doesn't mean an additional word processor created document added after the fact, your account is to be referenced in the bill of sale.

You can file that complaint online, it's not a formal courtlike procedure at all. http://www.consumerfinance.gov/complaint/

 

You'll also notice that CFPB order is clear they are not to initiate a lawsuit without these documents. They've shown in their discovery answers they have not complied. You notice all the answers past the burdensome boilerplate is that the records have been requested and if available will be provided but what they've given you so far is all they have. That doesn't cut it. They are to have these records before initiating a lawsuit.

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@grayctsv

How to complain to  the CFPB

http://www.consumerfinance.gov/complaint/

.  If Midland doesn't act in accordance with its Consent Order in your case,  get the CFPB involved.  How much they will do in each individual case is really up to them , but I would still make the effort via a complaint and then follow up.  The CFPB is increasingly flexing its muscle.

 

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Been a while since anything has happened and need a little help. I had received a court date back in October to compel to answer Midlands Account Interrogatories. I answered them and got another letter last week asking for better answers. So I redid them AGAIN this time hopefully proving a point (pics attached)

Next, since no answer is good enough I wanted to file my own Motion to Compel Discovery. I had sent my own Request for Production but they objected to everything. Is it wise to file this hoping they having nothing else or could it come back to bite me? Next if it's a step in the right direction how do you format it? I've looked and most examples are Plaintiff to Defendant, not reverse. **Their responses are on page 1**

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Sorry thought I attached @BV80

 

image.jpeg

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