thefinz

Midland Funding in Ohio

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OP:

Also, about discovery.

Some debtors have artfully used discovery to get plaintiff to object to the very documents that it would eventually need to prove standing to sue. In other words, plaintiffs objection kept documents essential to proving standing out of the ultimate evidence.

But I wouldn't push discovery. I mean, why push plaintiff to cough up just the documents that will, in fact, prove standing.

Anyway, if private contractual arbitration is available, MTC in that regard is probably the smartest way to respond to lawsuit.

The worst choice is a simple answer.

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@Happybluesky how can a defendant artfully use discovery to help the case and when should they know not to push discovery? If the Plaintiff has the documents to prove standing why would they need the defendant to push them to cough them up if that wins the Plaintiff's case? Wouldn't they just produce them?

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20 minutes ago, CCRP626 said:

@Happybluesky I'll ask since you've posted this before about is there anything else besides standing, do you any defenses. What are some affirmative defenses and counterclaims someone should consider besides standing and private arbitration? I guess Ohio in particular for the OP.

Well, the first things to look for are threshold issues such as SOL, standing, was the complaint sufficient in stating a claim, personal and subject matter jurisdiction. In most jurisdictions, these issues should be first raised via MTD. If MTD fails, they can be reasserted as affirmative defenses with answer.

Beyond that, look at the claims. A claim such as breach of contract or account stated has specific elements. Attack those elements. For example, a contract has to exist for a valid claim for breach of contract.

What if you actually paid a debt but were being sued anyway. I would file a motion to dismiss based on standing because plaintiff was not injured. If MTD not granted (certainly not end of case), then "Payment" would be a good affirmative defense.

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32 minutes ago, CCRP626 said:

@Happybluesky how can a defendant artfully use discovery to help the case and when should they know not to push discovery? If the Plaintiff has the documents to prove standing why would they need the defendant to push them to cough them up if that wins the Plaintiff's case? Wouldn't they just produce them?

Plaintiff may sue without having detailed documents to show traceability to defendant. They don't need that for most cases, because standing is not challenged. So plaintiff might as an expedient object to such burdensome discovery, but ultimately undercut their own case.

My reading of things is that it is way harder than a few years back winning on the basis of standing. The big CAs are basically connected to OC computers and they can often show in detail the flow of ownership of a debt. That's why MTC private contractual arbitration is so popular.

The only time I ever had to go as far as trial it was a case where OC and CA were intimately connected in terms of flow of debt. My pre-answer MTD based on standing was not granted - basically the usual generic bill of sale routine, but at hearing plaintiff assured judge that witnesses and more detailed documentation were available. Kindly judge stated that although he couldn't grant MTD, the case was not over. Well, the credit agreement was not included in plaintiff's list of evidence before trial. Being an essential element in the composite document theory of cc contracts, plaintiff was left without contract at trial - so I simply made an oral motion to dismiss based on lack of contract, and won! (Remember, existence of valid  contract is an essential element for breach of contract.)

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13 minutes ago, Happybluesky said:

I would file a motion to dismiss based on standing because plaintiff was not injured. If MTD not granted (certainly not end of case), then "Payment" would be a good affirmative defense.

Could you please show the OH rule or precedent that requires PROOF of standing when filing a complaint. 

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18 minutes ago, BV80 said:

Could you please show the OH rule or precedent that requires PROOF of standing when filing a complaint. 

I'm not an Ohio guy. But most states are notice states, and all the complaint has to do is give a general idea of the claim. No way would plaintiff have to prove its case based on that initial pleading. But you can file a MTD based on standing, SOL, and so on. Presumably plaintiff will file an opposition and produce more detailed documents. In Oregon the court will look past the complaint itself on a MTD for such threshold matters. So a well plead complaint really doesn't have to do much but give notice to the defendant of the allegations.

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6 minutes ago, Happybluesky said:

I'm not an Ohio guy. But most states are notice states, and all the complaint has to do is give a general idea of the claim. No way would plaintiff have to prove its case based on that initial pleading. But you can file a MTD based on standing, SOL, and so on. Presumably plaintiff will file an opposition and produce more detailed documents. In Oregon the court will look past the complaint itself on a MTD for such threshold matters. So a well plead complaint really doesn't have to do much but give notice to the defendant of the allegations.

In other words, proof of standing  does not have to be provided with the complaint, so a MTD based upon a lack of standing is a waste of time unless the defendant has documentation to prove the plaintiff lacks standing to sue.

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33 minutes ago, Happybluesky said:

The big CAs are basically connected to OC computers and they can often show in detail the flow of ownership of a debt.

As more of these CFPB orders pile up it's clear the electronic records provided are pretty basic and not enough to show a chain of title. The JDB's greed does them in. They have the option of buying supporting documentation for an extra fee but choose not to. Sloppy affidavits and as-is sales (the OC is the problem there) are another weakness.

 

38 minutes ago, Happybluesky said:

That's why MTC private contractual arbitration is so popular.

Great recordkeeping practices isn't why private arbitration is popular. Expense is the key and it doesn't take much for a JDB to see they'd rather take on numerous cases in court for the same outlay as one in arbitration.

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6 minutes ago, BV80 said:

In other words, proof of standing  does not have to be provided with the complaint, so a MTD based upon a lack of standing is a waste of time unless the defendant has documentation to prove the plaintiff lacks standing to sue.

I think you're throwing the baby out with the bath water.

In most states the court will look past the four corners of the complaint in deciding threshold issues in a MTD.

And of course, having to oppose the MTD helps wear down plaintiff, and keeps you at a safe distance from trial.

Now suppose the court denies MTD. You raised the issue of standing, and reassert it as an affirmative defense with answer. So next comes a plaintiff MSJ. But you now have in the record the issue of standing, and one or more material facts, such as regarding affidavits. You therefore defeat the MSJ.  But the poor sap that responded to complaint with a simple answer would probably be run over by plaintiff's MSJ.

 

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7 minutes ago, CCRP626 said:

As more of these CFPB orders pile up it's clear the electronic records provided are pretty basic and not enough to show a chain of title. The JDB's greed does them in. They have the option of buying supporting documentation for an extra fee but choose not to. Sloppy affidavits and as-is sales (the OC is the problem there) are another weakness.

 

Great recordkeeping practices isn't why private arbitration is popular. Expense is the key and it doesn't take much for a JDB to see they'd rather take on numerous cases in court for the same outlay as one in arbitration.

No, MTC is popular with debtors because due to much better record keeping  it is relatively hard winning in court against a determined CA / law firm.

The basic defenses are SOL and lack of standing.

Unless the complaint is time-barred, the connection between a Unifund and Citi is so tight you really have to be good, or lucky, to win in court. Contrast that with simply presenting plaintiff with very high fees, say in JAMS, for a not very good chance at collecting anyway.

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3 minutes ago, Happybluesky said:

 

In most states the court will look past the four corners of the complaint in deciding threshold issues in a MTD.

 

Nope.  Unless the court requires proof of standing to be included with the complaint or the defendant has proof of lack of standing, alleging standing is all that's needed. 

Eichenberger v. Woodland Assited Living Residence, LLC 2013

{¶ 14} The trial court's dismissal, pursuant to Civ.R. 12(B)(1), appears to be based on appellant's alleged lack of standing. It is required that to commence a lawsuit, a party must have both standing and capacity to sue. Mousa v. Mt. Carmel Health Sys., 10th Dist. No. 12AP-737, 2013-Ohio-2661, ¶ 12. A person lacks standing unless he has a real interest in the subject matter of the action. Id. A person has such an interest if he has suffered an injury of the defendant. Id. The complaint alleges it is being brought by decedent's personal representative for the benefit of decedent's children and other next of kin of the decedent pursuant to the relevant Ohio statutes. As such, appellant is a real party in interest and, thus, has standing to bring this litigation.

 

19 minutes ago, Happybluesky said:

Now suppose the court denies MTD. You raised the issue of standing, and reassert it as an affirmative defense with answer. So next comes a plaintiff MSJ. But you now have in the record the issue of standing, and one or more material facts, such as regarding affidavits. You therefore defeat the MSJ.  But the poor sap that responded to complaint with a simple answer would probably be run over by plaintiff's MSJ.

The affirmative defense of lack of standing is on the record.   The issue of standing raised by affirmative defense has just as much leverage as a vainly attempted MTD.  

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@Happybluesky Unless the complaint is time-barred, the connection between a Unifund and Citi is so tight you really have to be good, or lucky, to win in court. 

The connection can be tight but is it hearsay they're basing it all on and it most likely is, they'll lose in court. https://www.vermontjudiciary.org/LC/Supreme%20Court%20Published%20Decisions/op15-086.pdf

One benefit of arb governed by FAA is choice of law. If I was a defendant in a state with adoptive recordkeeping practices (looking at you Arizona) and I see the cardmember agreement follows another state's laws, I'd add that to the list of reasons to arb in addition to cost for the JDB. Borrowing statute for the state is another factor. If there is none to help in court but you see going to arb with the choice of law state gives you a SOL defense, that makes arb attractive.

 

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So, here's my read on arb for this one. Credit One says Nevada law applies on the current card agreement. 4 years SOL for credit cards in NV. Ohio is 6 as far as I can tell. JAMS/AAA options and they pay some of the costs.

For getting a dismissal since they only attached one statement, that's something to research under Ohio Rule 10 (d). Some case law here on page 3- http://www.nationallist.com/image/cache/White_Paper_Ohio_Debt_Collection.pdf

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Here in Oregon:

https://scholar.google.com/scholar_case?case=10486843285559523116&q=black+v.+arizala&hl=en&as_sdt=6,38&as_vis=1

The trial court has authority under ORCP 21 A(1) through (7) to consider whether to dismiss a complaint on the basis of facts drawn both from the complaint and "matters outside the pleading, including affidavits, declarations and other evidence."

And according the the SC:

https://scholar.google.com/scholar_case?case=1789581117125093979&q=warth+v.+seldin&hl=en&as_sdt=6,38&as_vis=1

For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. E. g., Jenkins v. McKeithen, 395 U. S. 411, 421-422 (1969). At the same time, it is within the trial court's power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, 502*502 the plaintiff's standing does not adequately appear from all materials of record, the complaint must be dismissed.

 

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23 hours ago, Happybluesky said:

In most states the court will look past the four corners of the complaint in deciding threshold issues in a MTD.

 "A motion to dismiss for lack of standing is properly brought pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted." Beard v. N.Y. Life Ins., 10th Dist. No. 12AP-977, 2013-Ohio-3709, ¶ 7, citing Brown v. Columbus City Schools. Bd. of Edn., 10th Dist. No. 08AP-1067, 2009-Ohio-3230, ¶ 4. When presented with a motion to dismiss for failure to state a claim for which relief can be granted, pursuant to Civ. R. 12(B)(6), a trial court must presume that all factual allegations in the complaint are true, construe the complaint in a light most favorable to the plaintiff, and draw all reasonable inferences in favor of the plaintiff.  Grover v. Bartsch, 170 Ohio App.3d 188, 2006-Ohio-6115, ¶16. {¶ 44}, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753.  A review of a motion to dismiss for failure to state a claim, however, looks only to the complaint. It is only when it is apparent from the four corners of the complaint that the complainant can prove no set of facts entitling him or her to relief that dismissal under Civ.R. 12(B)(6) is appropriate.  Landskroner v. Landskroner, 154 Ohio App.3d 471, 2003-Ohio-4945, 797 N.E.2d 1002, at ¶ 43.

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7 hours ago, BV80 said:

 "A motion to dismiss for lack of standing is properly brought pursuant to Civ.R. 12(B)(6) for failure to state a claim upon which relief can be granted." Beard v. N.Y. Life Ins., 10th Dist. No. 12AP-977, 2013-Ohio-3709, ¶ 7, citing Brown v. Columbus City Schools. Bd. of Edn., 10th Dist. No. 08AP-1067, 2009-Ohio-3230, ¶ 4. When presented with a motion to dismiss for failure to state a claim for which relief can be granted, pursuant to Civ. R. 12(B)(6), a trial court must presume that all factual allegations in the complaint are true, construe the complaint in a light most favorable to the plaintiff, and draw all reasonable inferences in favor of the plaintiff.  Grover v. Bartsch, 170 Ohio App.3d 188, 2006-Ohio-6115, ¶16. {¶ 44}, citing Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d 190, 192, 532 N.E.2d 753.  A review of a motion to dismiss for failure to state a claim, however, looks only to the complaint. It is only when it is apparent from the four corners of the complaint that the complainant can prove no set of facts entitling him or her to relief that dismissal under Civ.R. 12(B)(6) is appropriate.  Landskroner v. Landskroner, 154 Ohio App.3d 471, 2003-Ohio-4945, 797 N.E.2d 1002, at ¶ 43.

This also follows the Fed R of Civ P.

https://scholar.google.com/scholar_case?case=14827621585965383823&q=four+corners+of+the+complaint&hl=en&as_sdt=203

. A court's review on a motion to dismiss is "limited to the four corners of the complaint." St. George v. Pinellas County, 285 F.3d 1334, 1337 (11th Cir.2002). A court may consider only the complaint itself and any documents referred to in the complaintwhich are central to the claims.

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The typical complaint contains allegations referencing OC and the debt being assigned to CA.

Therefore, within the four corners of complaint are references to documents central to the complaint and plaintiff's standing to sue.

Assuming action is timely, usually the only valid defense is going to be an attack on plaintiff's standing.

In a notice state such as Oregon the requirements for a sufficient complaint are minimal.

But standing can be attacked starting in the pre-answer stage via MTD.

Essentially, plaintiff can produce the same documents, and make the same arguments in its memorandum opposing MTD, that it  could later in the process.

 

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A copy of a written instrument attached to the pleadings is considered part of the pleadings (Ohio Rule 10 C) with Rule 10 D requiring a copy of the account or written instrument to be attached. The single statement @thefinz mentioned would not qualify (see the link posted earlier). There's the motion to dismiss.

OR

When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56.

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{¶ 17} We have recognized that a defendant who fails to file a motion for a more definite statement under Civ.R. 12(E) before filing an answer has waived his or her right to assert Civ.R. 10(D) as a basis for dismissing the plaintiff's complaint. Midland  Funding,  L.L.C.  v.  Biehl,  5th  Dist.  Stark  No.  2013  CA  00035,  
2013-Ohio-4150.

 "Courts have repeatedly held that when a plaintiff fails to attach a copy of a written instrument to his complaint, the proper method to challenge such failure is by filing a Civ.R. 12(E) motion for a more definite statement." Castle Hill Holdings, L.L.C. v. Al Hut, Inc., 8th Dist. No. 86442, 2006-Ohio-1353, ¶ 26. It is the defendant's burden to move for a more definite statement under Civ.R. 12(E). Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416, 421, 2015-Ohio-1484, 31 N.E.3d 637, 643, ¶ 16 (2015) citing Fletcher v. Univ. Hosps. of Cleveland, 120 Ohio St.3d 167, 2008-Ohio-5379, 897 N.E.2d 147, ¶ 11. A defendant who fails to file a Civ.R. 12(E) motion before filing his answer has been held to have waived his right to assert Civ.R. 10(D) as a basis for dismissing the plaintiff's complaint. Sylvester Summers, Jr. Co., L.P.A. v. E. Cleveland, 8th Dist. Cuyahoga No. 98227, 2013-Ohio-1339, ¶ 31 citing Glenwood Homes, Ltd. v. State Auto Mut. Ins. Co., 8th Dist. No. 72856, 1998 WL 685493 (Oct. 1, 1998).

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@BV80 good catch on the definite statement, a good example of each state having their own quirks. It's also nice if as a defendant you ignore the complaint and the Judge just goes ahead and dismisses it under 10 D (1), adding in a failure to prosecute when the Plaintiff ignores the order to amend. https://cases.justia.com/ohio/fourth-district-court-of-appeals/2008-ohio-1850.pdf

Looks like both sides were doing their own thing for that case with the defendant not bothering to show up for the Plaintiff's appeal.

Rather than amending the complaint of filing some response that indicated why this was unnecessary, Capital One chose to file a motion for summary judgment. This act of apparent noncompliance with the court's order was unwise and risky at best.

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I really do appreciate the advice that was given in this forum, however in a recent OC case that I had in the exact same court I motioned to DWP and was awarded on the grounds of no contract, terms and conditions, signed affidavits, and statements from $0. I motioned to DWP for lack of standing, and failure to state claim. I was awarded. I was planning on going the route of arbitration, however I thought that I would be ballsy and try the DWP first, and I was just awarded it today. I think I will try that first. Then I will MTC arb if my MTDWP is denied.

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Ok, so long story short, I have a court order to arbitrate with Midland now, but however I just received a  letter from AAA that they can not arbitrate the collection of the account or the counter suit that I filed. Do I take this to the courts with a MTD or do I attempt to file with JAMS since they are in the contract as an allowed arbitrator on the case. 

AAARefusal.pdf

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