Thinmint

Help Needed, Going to Court Next Week, Sued by Midland

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Hi.  I have to go to court next week to defend myself against a Motion for Summary Judgement from Midland Funding. I have never been to court and do not know what to expect.  Following is link to the Complaint, my Answer, Plaintiff's Motion for Summary Judgement and my Objection to Motion and Request for Documents. Also please see my responses to common questions below.  Thank you in advance for any advice you might offer. *******EDIT - If you can't open files below see other link in my next post below ************

 

Complaint: https://www.evernote.com/shard/s447/res/9d65396d-9099-4f47-9436-1b3c79784d0b

My Answer to Complaint: https://www.evernote.com/shard/s447/res/41cff245-a48c-4b0c-b1ae-0c2c479497d7

 

Plaintiff’s Motion for Summary Judgement: https://www.evernote.com/shard/s447/res/4ea10ea3-a221-4f66-99bb-f4ff5f7e9010

 

My Objection to Motion: https://www.evernote.com/shard/s447/res/3d47dcdc-fe54-421f-9ab7-54ee5fd7cf9f

 

My Request for Documents: https://www.evernote.com/shard/s447/res/82843a43-805b-4e74-8b54-355e4c1bdd4f
 

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

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Lustig, Glasser & Wilson from Massachusetts

3. How much are you being sued for? $1527 (about $315 of that is fees tacked at charge off)

4. Who is the original creditor? (if not the Plaintiff) GE Capital Retail Bank (TJ Maxx credit card) who then sold to Synchrony Bank

5. How do you know you are being sued? (You were served, right?) Yes, served - see below-

6. How were you served? (Mail, In person, Notice on door) Husband answered door and was given papers while I was upstairs

7. Was the service legal as required by your state? I believe so, yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None with me  but my 11 year old son may have answered a call from them once

9. What state and county do you live in? RI

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never did.  Called in TJ Maxx in December just around Christmas to pay bill but I was told I could not as it had just been charged off.

11. What is the SOL on the debt? To find out: 10 years in RI

Statute of Limitations on Debts

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). Served and I answered complaint. Midland immediately sent Motion for Summary Judgement.  I filed an Objection to Motion for SJ and I requested Documents.  Hearing for Motion is next week, 9/22/16.

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. NO

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? No Questionnaire. Re: Midland’s claims, please see the link to  Complaint below as there are 18 counts

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Affidavit 1: “Legal Specialist”  with access to records for Midland Credit Management

Affidavit 2: “Affidavit Documentation Specialist”   of Synchrony Bank

Bill of Sale

Seller Data Sheet

A last document that looks like a TJ Maxx bill with total amount charged off

 

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Did you file for discovery after they filed for MSJ (It says access denied for all of that)?   If you waited, how long did they wait after your answer to file for MSJ?

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Here's the timeline:

 

Plaintiff  served me on 7/9/16

I sent in my Answer to Complaint on 7/27/16

Plaintiff mailed  Motion for Summary Judgement to me on 8/12/16 with hearing set for 9/22/16

I filed Objection to Motion for Summary Judgement on 9/14/16

I filed Document request on 9/14/16

 

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Look at your state's MSJ statute.  In Louisiana, they have to give you a reasonable amount of time to conduct discovery.     15 days is not a reasonable amount of time to conduct discovery.   i still cannot read those documents.  Was part of your objection to MSJ that you need time to conduct discovery?

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@Thinmint

I'm not an attorney, but one of the problems I see with your opposition to the MSJ is that you included included nothing in the way of evidence or court precedent to support your objections.  You made some good arguments such as pointing out that the fact that neither the bill of sale or affidavit of sale show that the account in question was included in a sale of accounts.  However, you cite no statute or court precedent to support that argument.

Was your request for production documents sent before the MSJ was filed?  If so, did Midland respond?

Since your court date is next week, the only thing I can suggest right now is that you view the following link.  It's a Consent Order between the Consumer Financial Protection Burreau and Encore Capital, Midland Funding,  and Asset Acceptance and outlines what those companies can and cannot do in regard to collections.

http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf

Here are some relevant sections:

Page 4

14.  "Encore" means Encore Capital Group, Inc., as well as its current (as of hte Effective Date) or former, direct or indirect, affiliates, subsidiaries, parents, divisions, or branches, and all of their successor and assigns, that are directly or indirectly engaged the in purchase, transfer, or collection of U.S. Consumer receivables, including, but not limited to, Midland Funding, LLC, Midland Credit Management, Inc., and Asset Acceptance Capital Corp.

As you can see, when "Encore" is referenced, it includes Midland Funding.


Page 34

PROHIBITION AGAINST THREATENING OR FILING COLLECTION LAWSUITS WITHOUT AN INTENT TO PROVE THE DEBT, IF CONTESTED

You've contested by answering the complaint.  So Midland has to provide certain documentation.

IT IS FURTHER ORDERED that:

131.  Encore, Encore's officers, agents, servants, employees, and attorneys, and all other persons in active concert or participation with any of them, who receive actual notice of this Consent Order, whether acting directly or indirectly, are permanently restrained and prohibited from:

a.  Initiating a Legal Collection lawsuit unless in possession of the following:

iii.  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

As you've pointed out, the documentation provided by Midland (bill of sale and affidavit of sale) make no "specific reference to the particular Debt being collected upon".

iv.  Any one of the following:

1.  A document signed by the Consumer evidencing the opening of the account forming the basis of the Debt; or

2.  Original Account-Level Documentation reflecting a purchase, payment, or other actual use of the account by the Consumer.

The credit card statement provided by Midland does not show actual use by you.  It merely shows a charge-off balance.

I don't know what the jduge would accept, but I'd make a copy of the consent order including the website address to show that the document came from the Consumer Financial Protection Bureau, highlight the relevant passages, and give it to the judge.  I'd also go ahead and file a complaint with the CFPB outlining how Midland has violated the Consent Order.

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