GTHMHNL

Midland Marvin Dang ID Theft Claim vs Debt Denial

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10 hours ago, GTHMHNL said:

No, my hesitation to proceed full-on with MTC Arb is solely based on my own unfamiliarity with how proceedings could turn out.  It does appear as though a motion can still be denied at the discretion of the presiding judge, so i'm just trying to explore possible outcomes and consequences.  I do get the impression, based on my instincts and nothing else truly tangible, that Hawaii courts tend to be no-nonsense in terms of keeping a clear element of reasonability, that frivolity and excess gets frowned upon.  That's not to say invoking ones rights (binding arbitration) would provoke that.  I just want to have as full understanding as I can find as I make decisions and take action...

There are 2 supreme court cases that support the right to arbitration if one is present in a contract.  It says that courts MUST honor the arbitration provision.  It doesn't matter what your local court or judge things of the idea, the supreme court already said they must rule in your favor.

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6 minutes ago, fisthardcheese said:

There are 2 supreme court cases that support the right to arbitration if one is present in a contract.  It says that courts MUST honor the arbitration provision.  It doesn't matter what your local court or judge things of the idea, the supreme court already said they must rule in your favor.

Understood.  I'm trying to make cautious decisions based on facts I can collect, including the original cardmember agreement directly from Chase, vs the one found on cardmemberagreements.org.  Since the core of this motion is based on this specific information, shouldn't I be sure the agreement from the time of Midland's purchase of the debt includes the arbitration clause?  

I can't find these supreme court rulings on google scholar.  Can you provide - it would be great to include it in the MTC Arbitration doc.

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There was a good case posted recently and this was an original creditor willing to throw away more money in arbitration than the debt was worth. The OC won in JAMS then the cardmember agreement gave an arbitration appeal which the consumer took advantage of requiring thousands more than the OC wanted to lay out so they just went away. That's an OC, not a debt buyer whose business model is buying potential default judgments for 5 cents or less per dollar of debt. The arbitration firms require payment in advance each step of the way, no deferred billing, so it becomes an easy choice for them to use the same amount to instead buy more accounts with a 95% chance of the defendants not showing in court.

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So, I just spoke to the executive office woman from Chase.  She told me they are not authorized to release card agreements on cases that have been charged off.  I got some info from her - that the account was opened 6/12/2002, 'credit revoked' on 9/9/09, last payment on the account was 8/25/10, sold to Credigy 1/20/2011 with a collectable balance of $12199.61 - which isn't an exact figure that appears on any other doc I have.  She had no (sharable) info about another transfer from Credigy to Midland after that, nor any indication of other correspondence with them after it was sold.  When asked if she could provide ANY agreement from the requested time period, not necessarily specific to my account, she put me on hold, then came back and said she wasn't to.

She said once it's sold, they can't get involved in any litigation.   In order to collect the exact agreement specific to my case/account, or any other info, I need to contact Midland.  She said her records only show the sale of the debt to Credigy Solutions but she did say the name Midland at some point.  When asked what she saw regarding Midland, she said she doesn't have access to that info (nor any other I asked about including amount the debt was sold for, what specific document were sold, and if it included the original 2002 signed contract agreement) - nothing.  She referred me to Collections, nothing, they referred me to Recovery - even less.

She's going to reply to CFPB recapping our conversation (i'm sure to a limited degree) to indicate their inability to provide a cardmember agreement of any sort.

So, considering the agreement i've been referencing is 2008, that still seems valid within the margins of this case.  And also considering that the HI court records show that my next appearance is a 'pre trial conference' and not a trial, maybe i'm good with everything as-is, and don't have to worry about filing any paperwork prior to July 18th.

Right?

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Done, and on time.  

It wasn't as simple as going down to the courthouse and submitting it to the clerk as i'd expected.  Turns out, here in Hawaii it's so unusual for a defendant to file a MTC A they didn't quite know how to proceed.  Initially, they said they were the wrong department (Legal Documents) and referred me to Claims.  I asked why, the sneery clerk said they didn't think this kind of document was processed at their desks.  Considering the general area wasn't very busy and Claims was at the next counter, no problem.   That clerk said I had to process my motion at Legal Documents - big surprise.  I went back, asked for a supervisor who, with furrowed brow, said she had to run it by a judge for approval to file because of how unusual it was for a defendant, not a plaintiff to file a MTC A, and she wasn't sure how to proceed.  Fine.  7 hours later they called to say it was approved and filed.  

So the MTC A is now officially filed with the court and copies sent CRRR to Marvin Dang's office.  I'm hoping the rarity of my actions will work to my advantage eventually.  Also curious to see if i'm contacted by Dang prior to July 18th 3rd pre-trial conference, as well as what kind of response i'll get from Midland and Chase on the still outstanding CFPB complaints.  Now comes the time to shore up my courtroom answers, and wait and see what comes next if anything prior to July 18th...

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@GTHMHNL glad you got it filed, so for future reference which desk or supervisor title did you finally end up going to? Now we'll have to see what Midland or the Judge says. The Plaintiff can't just run away now without your okay, so you have settlement leverage.

http://www.courts.state.hi.us/docs/court_rules/rules/dcrcp.htm#Rule_41

Rule 41. DISMISSAL OF ACTIONS.

      (a) Voluntary dismissal: Effect thereof.

      (1) By plaintiff; by stipulation. An action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before the return date as provided in Rule 12(a) or service by the adverse party of an answer or of a motion for summary judgment, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States, or of any state, territory or insular possession of the United States an action based on or including the same claim.

      (2) By order of court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon that defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

      (b) Involuntary dismissal: Effect thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. After the plaintiff has completed the presentation of the plaintiff's evidence, the defendant, without waiving the defendant's right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, the dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.

      (c) Dismissal of counterclaim, cross-claim, or third-party claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing.

      (d) Costs of previously-dismissed action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

      (Amended effective December 6, 1996.)

 

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5 hours ago, CCRP626 said:

glad you got it filed, so for future reference which desk or supervisor title did you finally end up going to?

Filed it with the very 1st desk I went to - 'Legal Documents' within the civil claims department.  The supervisor worked for that desk as well.  I wasn't able to retrieve the copy of the filed paperwork because they didn't call until 10 minutes before they closed yesterday, closed over the weekend, Monday is a holiday so Tuesday morning it is.

I should receive some kind of CFPB from Midland and Chase response this week - it's over a week, and as i've learned from you and subsequent reading, they are required to respond whether they want to or not.  This will be interesting...

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Update...

I went to the courthouse this morning just to pick up my stamped, filed copy of the Motion, or so I thought, only to find it was not approved and 'stricken' because it was missing the 'official' 'Notice of Hearing' section.  In fact, I did include 'Verification by Affidavit' and 'Certification of Mailing (to plaintiff)', as well as the court-generated notice of hearing from the previous trial with date/time/courtroom written on it, and copy of the registered mail receipt, but this specific section of the Motion for some reason needed to be submit as a single page containing all of this information together in a specific order.  Fine - I generated it and refiled it.  

However, because today is now 1 day past the 14 day time allowance, I also had to file a 'Motion to Shorten Time' with an explanation of why, which in this instance I could place the blame on the Access to Justice desk who reviewed my paperwork, twice, and said it was correct and complete.  Fine, motion filled out and filed.  Now I wait to hear whether the resubmit MTC A and MT shorten time are filed and approved.

There was no negotiating with them to consolidate the already provided info into a single-page format by recopying pertinent pieces together.  They were adamant that it had to be submit in the particular format.  Goes to show, never assume you're good to go until you have every sort of confirmation stamped and in-hand... 

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Notice of motion is a requirement informing the Plaintiff when the hearing is. Certificate of mailing is different, that's just used to prove you mailed the motion to the other party. Verification/Declaration is you saying this is all true to your personal knowledge and belief. At least it got caught early. One other thing to check on is if the Judge will be given a copy of the motion or if you need to give that to his clerk a few days prior to the hearing.

You'll notice the court provided motion has the notice, declaration/verification and the certificate. http://www.courts.state.hi.us/docs/form/oahu/1DC38.pdf

(b) Motions and other papers.

      (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

EDIT: I missed that you did have a notice already but they wanted it to be a single page. I'd point out to them their own court authorized Motion doesn't do that and their rules don't mention it.

Edited by CCRP626
The notice must be single page from the clerk
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5 minutes ago, CCRP626 said:

Notice of motion is a requirement informing the Plaintiff when the hearing is.

This is what was confusing about their issue with the MTCA packet I filed last week - I attached the court-generated Notice of Pretrial Conference received by both me and Dang at the last appearance with time/date of the next appearance.  It essentially has all the information required in the Notice of Hearing page that I had to generate today.  Whatever - it's done, and according to their specs so hopefully things work out this time...

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Holy Moly - I just received this note from Midland via CFPB portal.  It mentions an extended explanation in the attached response, but there wasn't any attachment other than their very first response back in June.  

Response disputed 
MIDLAND FUNDING, LLC said:
Explanation of closure 
Thank you again for your inquiry through the Consumer Financial Protection Bureau.  As indicated in your complaint, your desired resolution was to have the suit dismissed.  Midland Credit has investigated the claims brought forth in your complaint as outlined in its summary response.  As a result of Midland Credit's investigative measures, your complaint has been "Closed with Explanation."  Please see the attached response for a full description of Midland Credit's investigative results.

 

What do I do now - cancel the upcoming trial date?  Contact Dang's office to confirm?  I feel as though I should try to seek their 'full description of investigative results' - I actually want to know.

 

According to CFPB, Closed with Explanation is defined as:

Closing a complaint with explanation means the company provides an explanation to the consumer that substantively meets the consumer’s desired resolution or explains why no further action will be taken.

 

Does this mean this is actually over??  (or almost, at least...)

 

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If only the CFPB complaint (not a lawsuit dismissal) is closed, you continue with your MTC. Read through everything and see. Don't call Dang. If they're done with it and want to dismiss, you'll have to agree- (see the rules linked earlier in the thread).

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4 minutes ago, CCRP626 said:

If only the CFPB complaint (not a lawsuit dismissal) is closed, you continue with your MTC. Read through everything and see. Don't call Dang. If they're done with it and want to dismiss, you'll have to agree- (see the rules linked earlier in the thread).

Doesn't Midland stating that it is Closed with Explanation mean Midland has closed this case?  I read everything on the CFPB page over and over, it's all the original responses, nothing relevant to the Closed with Explanation.  Should I pursue the actual explanation since there is not attachment?  This is what I was thinking, that I need something more official in order to consider this over with.

I just came from the courthouse with the accepted MTC A and the Motion to Shorten Time which allowed the MTC A officially filed within an acceptable time.  I'm just about to send the original stamped copies of the 2 Motions to Dang's office, along with a printout of the CFPB response.  

Should I proceed with this?

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Yes, proceed in court with your MTC Arb. Don't confuse the complaint with the court case.

If the CFPB complaint hasn't been handled to your satisfaction, see what it says for contacting them. It all goes into a database (you can look through) they can use later to see a pattern to act on. http://www.consumerfinance.gov/complaint/data-use/ 

http://www.consumerfinance.gov/data-research/consumer-complaints/

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Just got off the phone with CFPB.  As you specified, they explained that Midland's response to my last dispute, with the 'Closed with Explanation' comment, is indeed to specify that Midland has closed this correspondence with CFPB, not with me.  So the lawsuit remains.  Very misleading... I'm headed to the post office to mail these docs to Dang withOUT the copy of the CFPB response.

It was just too good to be true...

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I'm sure in a CFPB complaint Midland would not come right out and admit "yeah, we didn't follow the CFPB order we signed". You can always use the order as part of your arb filing after the MTC is approved up until an arbitrator is decided on.

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53 minutes ago, CCRP626 said:

it says (with personal detail redacted)...?

No - it was the exact same response letter they sent the 1st time.  The CFPB woman said by using the same one means that they're probably sticking to their initial claims, whether I find it incomplete, inaccurate or otherwise.

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@GTHMHNL The CFPB order (page 36, paragraph 131 b v.) gives them 30 days to send all the required docs to you from the time you asked. If that time has passed, one other step you could try is writing a letter/e-mail to the Enforcement contact at the bottom of the CFPB order page 59 of 63. Or just do a new CFPB complaint after the 30 day mark if your old one is locked. You could also send one along to Hawaii's Atty general (see their site for consumer complaints).

These are supplemental. Keep going at your court case preparing for your MTC hearing.

Any update on the Chase complaint to get your agreement?

 

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17 minutes ago, CCRP626 said:

Any update on the Chase complaint to get your agreement?

Nope - no response to this.  They still have some time to respond.  It may not be critical information for the MTC A hearing, and if I don't get it within 30 days from the complaint, i'll pursue again through CFPB.

 

20 minutes ago, CCRP626 said:

The CFPB order (page 36, paragraph 131 b v.) gives them 30 days to send all the required docs to you from the time you asked. If that time has passed, one other step you could try is writing a letter/e-mail to the Enforcement contact at the bottom of the CFPB order page 59 of 63. Or just do a new CFPB complaint after the 30 day mark if your old one is locked. You could also send one along to Hawaii's Atty general (see their site for consumer complaints).

I'll start to organize these docs as well. 

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Yesterday's Midland CFPB response has been bothering me, I called CFPB again today to ask about how they get away with not responding to the points in my dispute to their 1st response.  He said CFPB doesn't get involved in mediation as much as provide a venue for consumer/business interaction, and consultation on what could be done.

He suggested I file a new complaint about not finding their yesterday's response adequate because it did not address specifics details in the dispute.  He said there is no time frame for it to be done in or around, but just make sure it doesn't appear as a duplicate.  Here's my draft:

'This is regarding case 16065-002500, and is not a duplicate complaint.  Midland Funding LLC responded on 7/7/2016 to a previously disputed response submit on 6/15/2016 detailed in the case file, and was disputed on 6/27/2016 specifying missing information that is lawfully required of them to validate the alleged debt.

Instead, they replied 7/7/2016 with a 'Closed with Explanation' response which pertains to this response at large, vs handling my case with them specifically, and without the option to further dispute.  Within it, they specify, "Please see the attached response for a full description of Midland's investigative results" however, the response they are referring to is the one originally sent 6/27/2016, and did not address any of the outstanding issues.

The outstanding issues by CFPB ORDER File No. 201 -CFPB-0022 that remain unaddressed include:

"A chronological listing of the names of all prior owners of the Debt and the date of each transfer of ownership of the Debt, beginning v.rith the name of the Creditor at the time of Charge-off;
m. 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; and IV. Any one of the following::
1. A document signed by the Consumer evidencing the opening of the account forming the basis for the Debt; or
2 . Original Account-Level Documentation reflecting a purchase, payment, or other actual use of the account by the Consumer."

This CFPB Order specifies:
PROHIBITION AGAINST THREATENING OR FILING COLLECTION LAWSUITS WITHOUT AN INTENT TO PROVE THE DEBT.

Midland Funding LLC has not complied to this ruling and are in violation of CFPB and FTC rules.'

 

Any thoughts on this?

 

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17 minutes ago, GTHMHNL said:

Midland Funding LLC responded on 7/7/2016 to a previously disputed response submit on 6/15/2016 detailed in the case file, and was disputed on 6/27/2016 specifying missing information that is lawfully required of them to validate the alleged debt.

You started the complaint asking for the required docs on June 15? If that's the date, give them 30 days to comply, then contact the CFPB. Make clear 30 days as specified has come and gone at the time.

Chances are Midland doesn't have the docs or ability to get them. Years old purchase, sale agreement is most likely as-is, no documentation without extra cost involved and only for a limited period. CFPB order just came out Sept 2015 which is hard for Midland to comply with on a purchase from long ago. They still aren't to initiate a lawsuit though without these docs which are pretty basic. This is a debt if Chase never sold back before all their robosigning and other issues came to light would have probably just cancelled and sent you a 1099C for.

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3 minutes ago, CCRP626 said:

You started the complaint asking for the required docs on June 15? If that's the date, give them 30 days to comply, then contact the CFPB.

I asked the CFPB guy about this, he said to file a new complaint that might have carryover information but addresses a different topic - in my instance, not responding with the information originally requested - there are no time specifications...  Or at least, that's how I understood it.

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