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As of today I still have not received anything from the court.  I called there and they said the judge was still reviewing the motion.  Is this a good sign or are they possibly that backed up?  What is the standard time you can expect to hear back after filing a motion to vacate?  The motion was officially filed on 5/31/16, so its been exactly 3 weeks. 

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  • 1 month later...

UPDATE: After 2 months of nail biting stress I have finally received a response on a motion to vacate.  The clerk from the court called me to tell me that the judge granted my motion to vacate!  Whoohoo!  I realize my fight is not over though, the clerk told me that the judge reinstated the complaint and they set a trial date for October.  So I guess the SOL rule is not effective at this time since there has been no dismissal yet.  @kraftykrab you touched on this briefly back when I filed the motion to vacate in May.      I am waiting for the formal ppwk from the court but I am happy for some good news.   

So I am not sure what to do next, please help with an action plan.  

I believe I should request discovery, but I am not sure how to go about doing that.  Is there a document I need to file with the court or will a written request do?

Beyond that, I am stalled on what to do next.

Thanks! 

 

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Check your state's rules of civil procedure regarding discovery.  Most states do not require discovery to be done through the courts, but instead between the parties outside of court.  That means you would send your discovery requests directly to the attorney for the JDB.  But, some do require it to go through the courts, and some courts, depending on what level this is, would actually require you to seek the court's permission to conduct discovery.  Read up on those rules of procedure for your state to find out what your state requires.  Also, when it comes to discovery, I would recommend looking through the CFPB consent orders against Midland and that attorney, and request that they send you every single document that the consent orders state is required.

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On 7/26/2016 at 7:24 PM, BV80 said:

Now that the complaint has been reinstated, shouldn't it be answered?

Doesn't the OP still have to be properly served with the complaint?

 

On 7/26/2016 at 4:05 PM, huntrosa8 said:

So I am not sure what to do next, please help with an action plan.  

 

I believe I should request discovery, but I am not sure how to go about doing that.  Is there a document I need to file with the court or will a written request do?

 

Beyond that, I am stalled on what to do next.

Doesn't look like Target card has arbitration so this is stuck in court but double check. Look in your Rules of Civil Procedure for discovery procedures. Make sure you check the CFPB order against Midland and these attorneys out. Midland prior to initiating a lawsuit is required to provide you documentation within 30 days of your request which is not required to be part of discovery, so send a letter now. File a CFPB complaint for the improper service and if you aren't provided the documentation that is required. Have the orders entered under Judicial Notice. Possible argument against this since the case was filed years ago and the Judge just reinstated it is they'll argue this was before the Sept 2015 order effective date.

New Jersey doesn't sound consumer friendly if you've been sued. Check some recent threads for attorney recommendations and go in for a consult. Discuss payment plans for their services if you're worried about not being able to afford an attorney.

Page 34-36 has the documentation detail- http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

 

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3 minutes ago, CCRP626 said:

Doesn't the OP still have to be properly served with the complaint?

This is a rare situation where the service is the ruling by the judge that the judgment is vacated but the case will be retried.  A new formal service is not required since clearly the Defendant is aware of the action now by filing the motion to vacate and the court granting it.

6 minutes ago, CCRP626 said:

Possible argument against this since the case was filed years ago and the Judge just reinstated it is they'll argue this was before the Sept 2015 order effective date.

I would argue that this behavior in this case is EXACTLY why the order is in place to start with and that this sewer service should be considered as part of the thousands of cases that prompted the CFPB to file a suit against them to start with.

6 minutes ago, CCRP626 said:

New Jersey doesn't sound consumer friendly if you've been sued.

No it isn't which is why given the vacating of the judgment I would go get a consumer attorney to take this case for the FDCPA violation and file a counter claim that would make the Plaintiff and P&P cave in a heart beat.

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4 hours ago, CCRP626 said:

Doesn't the OP still have to be properly served with the complaint?

The OP needs to contact an attorney and ask.  As @Clydesmom pointed out, considering the OP already has notice of the lawsuit, it may not be necessary for the plaintiff to serve the complaint again.

 

@huntrosa8

Was an affidavit filed with the complaint?   If so, do you have a copy of it?  If it contains certain language, Midland might owe you.

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I called the courthouse this afternoon and they informed me that I do not have to file an answer since I included one with the motion to vacate.    So now I will be focusing on compelling discovery.  The court clerk said I do not have to file anything with them for that, I just have to communicate directly with Pressler for that.  

The original case file definitely was filed with affadavits.  Everything I have so far is on either Midland or Pressler letterhead and I did mention that in my answer.  

Would attaching the answer help at all?  Or the original complaint?  I don't know that the language violates the consent order but perhaps you all will see something different.  

In the meantime, Pressler called me and asked if I would consider settling.  I told the rep that if they would send me proof of debt I would review and take it into consideration.  

They also said that they would be applying for a transfer of venue, since the case was filed in the wrong county from the start.  However, I might object to that -- I feel I have a sympathetic judge and he is already well-versed on my case.    The Pressler rep asked if I would be willing to sign something approving the change of venue and I told him no - not until they proved that the debt was mine.  

Funny how the tone of the conversation took a turn for the worse once I asked for proof of debt.

@kraftykrab; @BV80; @CCRP626; @Clydesmom  

I have made a few calls to some Consumer Attorneys in the area to inquire about FDCPA Violations counterclaims.  I have the consent order in hand and am using the requirements stated to prepare my discovery letter.  Useful :)    As always, thanks for the continued help.  

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33 minutes ago, huntrosa8 said:

In the meantime, Pressler called me and asked if I would consider settling.

The answer is yes.  For a dismissal with prejudice and $1000 for the counter claim for the FDCPA violation(s) you are getting ready to file.  If they balk I would point out that this is getting off cheap because once you hand it to a consumer attorney they are on the hook for his/her fees as well as the payment to you.  Then settle ultimately for the dismissal with prejudice so that neither Midland nor anyone else can come after you again.

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@CCRP626 I pulled my credit report once I found out about the case and saw the judgement on there.   I haven't used credit cards in years so I have had no reason to look at it until recently.  

@BV80 I will scan and post docs tomorrow morning

@Clydesmom I love your thinking.  In fact, I am quite excited for this joker from Pressler to call me back again so that I can tell him that.  

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hunt,

The bad news is that unfortunately, we have had NJ consumer lawyers tell us (and some have told me by email) that it is very difficult for defendants in collection cases to win in NJ Special Civil; that they are reluctant to take these cases absent clear-cut FDCPA violations; and that their fee for a credit card defense starts at around $3K.  

The good news for you is that you got Midland's/Pressler  judgment against you vacated; the CFPB slapped them with that Consent Order awhile back and they know you aren't going to roll over for them.  That's why they are asking you to settle.   You need to make life as difficult as possible for them. If you can, you may want to file an Amended Answer with FDCPA counter-claims.  That would be more leverage against them.  Also, even if Philip Stern can't or won't take your case, I do know that he will sometimes offer advice by phone or email.

 

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@huntrosa8

I would also file a  written complaint with the  Better Business Bureau (BBB) against Midland.   Their corporate office is in San Diego, CA., so file an online complaint against them with the San Diego,  CA  BBB.   Also file a complaint against them with the NJ BBB.   I can't say that is certain to work,  but sometimes it does.  Debt collection companies don't like BBB complaints and will respond to them because they do not like the bad publicity.   You want to stress in your complaint that they sued you at the wrong address and got a judgement  against you which you had vacated  or overturned and now they are suing you again and violating a Consent Order from the CFPB,  that they are harassing you  and you want them to dismiss their lawsuit.    It will cost you nothing to file a complaint and it's another tool you can use against them.  You can Google the BBB addresses.

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I attached a few of the case files (redacted).  Uploaded is the most recent "Interrogatories" Request from Pressler, their alleged "debt validation" documents (sent to me recently) and the original case file from the 2012 judgement which includes the initial complaint, and all the original case documents.  @BV80, sorry for the delay, I changed offices and did not have a scanner until today.  

I have been in contact with an attorney from Flitter Milz, but I am not sure if they are interested in taking the case or not.   I had contact Philip Stern way back when and never received a response.  But I might try him again, thank you for the suggestion @debtzapper. I am not trying to get rich here, I just want them to leave me alone and take the black cloud off the top of my head!  I might even consider a settlement just to make them shut up - and I still don't recognize this debt lol!

In any case, I will try to check in over the weekend but most likely will not be able to offer any meaningful responses until Monday.  Have a great weekend everyone and thank you for your continued support.  

Redacted Original Complaint and Court Files.pdf

Interrogotories Redacted Version.pdf

Debt Validation Redacted.pdf

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9 hours ago, huntrosa8 said:

I have been in contact with an attorney from Flitter Milz, but I am not sure if they are interested in taking the case or not.

also check  http://yournjattorneys.com/debtcollectiondefense/

they have an interesting debt collection blog to check out, this one on how they vacated a judgment where service was made on a condemned building shows maybe NJ needs to work on their proof of service requirments. http://yournjattorneys.com/proving-lack-service-vacate-default-judgment-nj-special-civil/

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  • 8 months later...
  • 3 months later...
On 8/1/2016 at 4:45 PM, huntrosa8 said:

I called the courthouse this afternoon and they informed me that I do not have to file an answer since I included one with the motion to vacate.    So now I will be focusing on compelling discovery.  The court clerk said I do not have to file anything with them for that, I just have to communicate directly with Pressler for that.  

The original case file definitely was filed with affadavits.  Everything I have so far is on either Midland or Pressler letterhead and I did mention that in my answer.  

Would attaching the answer help at all?  Or the original complaint?  I don't know that the language violates the consent order but perhaps you all will see something different.  

In the meantime, Pressler called me and asked if I would consider settling.  I told the rep that if they would send me proof of debt I would review and take it into consideration.  

They also said that they would be applying for a transfer of venue, since the case was filed in the wrong county from the start.  However, I might object to that -- I feel I have a sympathetic judge and he is already well-versed on my case.    The Pressler rep asked if I would be willing to sign something approving the change of venue and I told him no - not until they proved that the debt was mine.  

Funny how the tone of the conversation took a turn for the worse once I asked for proof of debt.

@kraftykrab; @BV80; @CCRP626; @Clydesmom  

I have made a few calls to some Consumer Attorneys in the area to inquire about FDCPA Violations counterclaims.  I have the consent order in hand and am using the requirements stated to prepare my discovery letter.  Useful :)    As always, thanks for the continued help.  

Hi huntrosa8, how did this all turn out for you?

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