Sign in to follow this  
turtleturle

Midland funding trying to serve me in another state

Recommended Posts

Hi

I've seen a few posts about Midland here and I'm wondering what I can do. I have not received any type of correspondence from Midland myself, no mail, no phone calls. However today the person that lives in my old home in another state, called to tell me someone showed up a few times this week to serve me court papers and they told the court server I no longer lived there and they didn't know how to find me and the court server left.  With that being said, my old residence is in a different state(mo) than I reside in now(il). From the information they gave me about a court server I was able to find some info on the states court website but the info is pretty vague. It shows the info was filed in November 2016 and the court date is in a few days, and the amount is less than $500. I have no idea who the original creditor would be or even how I need to proceed right now. I know being able to go out of state and have time off work within just a few days for the court date is 100% out of the question unless I quit my job. 

 

Any advice/suggestions? 

Thank you

Share this post


Link to post
Share on other sites

If they haven't served you then the court date cannot proceed without you.  Make certain the court didn't approve "alternative service" by newspaper publication or that the server didn't lie and say they served you anyway.

You do NOT have to go back to the former state to defend this.  If you moved before November 2016 then Midland violated the FDCPA by filing in a jurisdiction you didn't live in.  I would contact a consumer attorney and hand it off to them to sue Midland for the FDCPA violation to make the entire issue go away with no effort on your part and Midland write you a check.

Share this post


Link to post
Share on other sites

I agree with clydesmom.  JDBs like Midland have been known for "sewer service"....basically, the summons gets tossed "in the sewer" and they lie to the court and claim that you were personally served.  In this way, they set up a default judgment without you even knowing.

I would recommend being proactive....these debt collectors are all about taking money, sometimes not even legally.  The easiest time to head this off is now, before there is a judgment.  Their next move, if they intend to claim you were served, will be to ask the court to grant default judgment for them.  Check out these links:

http://nahoumlaw.com/midland-funding-10749-87-default-judgment-settled-voluntarily-vacated-dismissed-sewer-service/

http://www.creditinfocenter.com/community/topic/323305-midland-funding-llc-help-me-vacate-my-default-judgment-ny/

http://www.creditinfocenter.com/community/topic/327757-vacate-default-judgement-midland-funding-sued-me-in-nj/

http://www.creditinfocenter.com/community/topic/315469-midland-awarded-default-judgement-in-2010/

https://www.nytimes.com/2014/05/01/nyregion/top-state-judge-tightens-rules-on-debt-collection.html?_r=0

As you can see, Midland is familiar with this practice.  If you are going to seek an attorney, now would be the time.  Dont wait until you get slapped with a garnishment or levy.  If you are not going to get an attorney, I would still seek out a free consultation with one.  You might learn a general direction that way.  Basically you have two choices.  First, you can attack this now and move to dismiss for improper venue.  This is you telling the court that as of _____ date, you are no longer a resident of the state of MO.  Or, you can see how they try to claim you were served and then act.  This would be my choice, but you need to stay on top of it and attack the minute you see that they claimed you were served.  With the second option, I would at the same time consider filing an action against them in your current state for violating FDCPA--suing you where you do not reside.  As clydesmom said, you can locate a consumer attorney who would do that for you.  But whatever you do, dont wait.  

Share this post


Link to post
Share on other sites

@turtleturle

As has been suggested, you need to speak to an attorney.

Right now, there's no FDCPA violation for merely filing the complaint in the wrong venue.  

Now, if Midland serves you where you currently live based upon the complaint in the foreign court, you'd have a violation. 

If they never serve you but get a default judgment, depending upon the circumstances, they would, more than likely, be found to have violated the FDCPA.

Share this post


Link to post
Share on other sites
On 2/5/2017 at 8:12 PM, Clydesmom said:

If they haven't served you then the court date cannot proceed without you.  Make certain the court didn't approve "alternative service" by newspaper publication or that the server didn't lie and say they served you anyway.

You do NOT have to go back to the former state to defend this.  If you moved before November 2016 then Midland violated the FDCPA by filing in a jurisdiction you didn't live in.  I would contact a consumer attorney and hand it off to them to sue Midland for the FDCPA violation to make the entire issue go away with no effort on your part and Midland write you a check.

Yes I moved in 2014. Would a lawyer be less than the $500 owed and be worth it? This would be a great option if I could do this without traveling to the other state as it is a 7 hr drive one way. 

Share this post


Link to post
Share on other sites
1 hour ago, turtleturle said:

Yes I moved in 2014.

Then odds are HIGH that Midland did not do due diligence in locating you and simply used sewer service which is an FDCPA violation.

1 hour ago, turtleturle said:

Would a lawyer be less than the $500 owed and be worth it?

Very much so because the attorney likely will be taking the case at no cost to you because Midland will be paying the attorney fees and you for the FDCPA violation.

1 hour ago, turtleturle said:

This would be a great option if I could do this without traveling to the other state as it is a 7 hr drive one way. 

The first thing the attorney will do is file a Motion to Dismiss for lack of jurisdiction.  You have not been subject to the jurisdiction of that court in 3 years since you moved in 2014.  Since Midland filed 2 years after you moved they cannot force you to try it in another state 7 hours away.

Share this post


Link to post
Share on other sites
1 hour ago, Clydesmom said:

Then odds are HIGH that Midland did not do due diligence in locating you and simply used sewer service which is an FDCPA violation.

Very much so because the attorney likely will be taking the case at no cost to you because Midland will be paying the attorney fees and you for the FDCPA violation.

The first thing the attorney will do is file a Motion to Dismiss for lack of jurisdiction.  You have not been subject to the jurisdiction of that court in 3 years since you moved in 2014.  Since Midland filed 2 years after you moved they cannot force you to try it in another state 7 hours away.

Unfortunately, if the OP has not been served and there's no default judgment, then there's no FDCPA violation yet.

Share this post


Link to post
Share on other sites

The problem with getting an attorney for this is that you will likely need one that is licensed to practice law in both states.  If you filed a counter claim in that case, you would be agreeing to that court's jurisdiction, and that means that any action you intend to take regarding any potential FDCPA violations would need to be done in your state.  At the same time, an attorney filing a motion on your behalf in the other state is engaging in the practice of law, so he/she needs to be licensed to practice law there too.

You might consider filing a motion to dismiss their case without an attorney, as it is a rather simple deal relatively speaking.  Basically, you would  state the fact that you have not been a resident of that state since 2014, and as such, the venue is improper.

 

4 minutes ago, BV80 said:

Unfortunately, if the OP has not been served and there's no default judgment, then there's no FDCPA violation yet.

I do not agree.  The violation does not rely on service---suing someone in the wrong jurisdiction is taking action that is not legally permissible, and is a violation in its own right.  When we talk about sewer service, of course, that's a violation too, but separate.  There are some simple ways that the OP might be able to show that Midland was well aware that he no longer lived in that state, and if he can show that, he's proven a violation IMO.

OP, check your credit reports.  Did Midland pull your reports?  Look in the section that shows credit inquiries....if they are not reporting on your report, they still could have pulled it.  And, if your current address is showing on that report, they have no excuse.  BV--consider this....the court papers will show the address that Midland listed for the OP to be served.  If they pulled his credit, and saw the new address, but still sued in that place and claimed that he lived at the old address, then they are caught red-handed.

Share this post


Link to post
Share on other sites
9 minutes ago, kraftykrab said:

The problem with getting an attorney for this is that you will likely need one that is licensed to practice law in both states. 

Not necessarily a difficult task.  In the upper mid-west many attorneys have licenses in three states due to the close proximity.  It is not uncommon to see a lawyer have licenses in IL, IN and OH.  Here in NV we often see lawyers with licenses in NV, CA, and AZ.  Even if the attorney hired is not licensed in the two states most states have a provision on the books that will allow a one time representation to file a simple motion on something like this without having to obtain a state license to do so. 

9 minutes ago, kraftykrab said:

If you filed a counter claim in that case, you would be agreeing to that court's jurisdiction, and that means that any action you intend to take regarding any potential FDCPA violations would need to be done in your state. 

I would not file a counter claim on this case.  Another option is to have a consumer attorney file a straight up FDCPA claim in Federal Court.  Midland will most likely dismiss and back down pretty quickly.  In which case an attorney licensed in two states would not be necessary because as soon as the Federal claim is served on Midland my guess is they immediately dismiss the improper suit in the other state and start asking how they can settle to avoid Federal Court.

Share this post


Link to post
Share on other sites
9 minutes ago, kraftykrab said:

I do not agree.  The violation does not rely on service---suing someone in the wrong jurisdiction is taking action that is not legally permissible, and is a violation in its own right.  When we talk about sewer service, of course, that's a violation too, but separate.  There are some simple ways that the OP might be able to show that Midland was well aware that he no longer lived in that state, and if he can show that, he's proven a violation IMO.

Abu-Samra v. Cavalry - ND Illinois, 2015

The Fifth Circuit also has addressed this issue and held that a violation of § 1692i requires filing and notice to the consumer. See Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440, 445 (5th Cir. 2013).  The Fifth Circuit explained that "because the harm of responding to a suit in a distant forum arises only after receiving notice of that suit, a `violation' does not arise under § 1692i(a)(2) until such time as the alleged debtor receives notice of the suit."

For the reasons explained above, the Court agrees with both the analysis and result in Knight and Serna and thus concludes that Defendant did not violate § 1692i(a)(2) by merely filing its complaint in the First Municipal District, because it never served Plaintiff with the complaint and summons when the complaint was pending there.

Share this post


Link to post
Share on other sites

BV, you are only talking about one specific portion of FDCPA.  I am not.  There are many ways to violate FDCPA.  The express provision regarding where they may file is not the only way that filing a lawsuit can get them in hot water.  You are forgetting subsection 807, which states that a debt collector may not use any false representations whatsoever in the course of collecting a debt.  This debt collector could be falsely representing to the court that it would have proper jurisdiction in this matter.  It's also clearly an unfair practice if Midland knew beforehand that OP was no longer in that state for them to pretend on legal documents that he did.  The case law you cited specifically revolves around 1692i(a)(2), but there is so much more involved here that does not relate at all to 1692i.

 

Section 807:

"A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. "

Note that 807 does not require that the false or deceptive representation be told specifically to the consumer, but rather, it says that NO false or deceptive means are permitted. 

Section 808:

"A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt."

It is absolutely unfair for a debt collector to knowingly sue someone and claim to that court that the defendant lives in that jurisdiction.  Midland would have had to list the address at which the defendant could be served with its complaint, thus, Midland made a representation to the court that it could have known was false.  It would be an intentional effort to get a default judgment while depriving the consumer of due process, and that absolutely falls under the definition of "unfair practices". 

 

It's not physically where they filed the lawsuit that I'm talking about, because they can file it where the debt originated.  It's the fact that they could have known he moved, and still lied to the court about where he could be served.  And that can easily fall under multiple portions of FDCPA.

 

 

Share this post


Link to post
Share on other sites
14 minutes ago, Clydesmom said:

Not necessarily.  In the upper mid-west many attorneys have licenses in three states due to the close proximity.  It is not uncommon to see a lawyer have licenses in IL, IN and OH.  Here in NV we often see lawyers with licenses in NV, CA, and AZ.  Even if the attorney hired is not licensed in the two states most states have a provision on the books that will allow a one time representation to file a simple motion on something like this without having to obtain a state license to do so. 

I would not file a counter claim on this case.  Another option is to have a consumer attorney file a straight up FDCPA claim in Federal Court.  Midland will most likely dismiss and back down pretty quickly.  In which case an attorney licensed in two states would not be necessary because as soon as the Federal claim is served on Midland my guess is they immediately dismiss the improper suit in the other state and start asking how they can settle to avoid Federal Court.

I agree--I probably didnt say it well, but I was trying to say that filing a counter claim is bad because you cannot then claim that the court has no jurisdiction over the initial issue that Midland filed its complaint over. 

Share this post


Link to post
Share on other sites
27 minutes ago, kraftykrab said:

BV, you are only talking about one specific portion of FDCPA.  I am not.  There are many ways to violate FDCPA.  The express provision regarding where they may file is not the only way that filing a lawsuit can get them in hot water.  You are forgetting subsection 807, which states that a debt collector may not use any false representations whatsoever in the course of collecting a debt.  This debt collector could be falsely representing to the court that it would have proper jurisdiction in this matter.  It's also clearly an unfair practice if Midland knew beforehand that OP was no longer in that state for them to pretend on legal documents that he did.  The case law you cited specifically revolves around 1692i(a)(2), but there is so much more involved here that does not relate at all to 1692i.

 

Section 807:

"A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. "

Note that 807 does not require that the false or deceptive representation be told specifically to the consumer, but rather, it says that NO false or deceptive means are permitted. 

Section 808:

"A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt."

It is absolutely unfair for a debt collector to knowingly sue someone and claim to that court that the defendant lives in that jurisdiction.  Midland would have had to list the address at which the defendant could be served with its complaint, thus, Midland made a representation to the court that it could have known was false.  It would be an intentional effort to get a default judgment while depriving the consumer of due process, and that absolutely falls under the definition of "unfair practices". 

 

It's not physically where they filed the lawsuit that I'm talking about, because they can file it where the debt originated.  It's the fact that they could have known he moved, and still lied to the court about where he could be served.  And that can easily fall under multiple portions of FDCPA.

 

 

Read Abu-Samra.  It addresses both 1692e and f.   Here's what it regarding 1692f.

"[W]here the plaintiff's FDCPA claim arises from the instigation of a debt collection suit * * * [and] the debt collector * * * elects to call off the process server and abandon the collection suit before the plaintiff has been served, it cannot be said that the abandoned lawsuit constitutes an `attempt to collect' on the debt within the meaning of [§ 1692f.]" Johnson v. Riddle 305 F.3d 1107, 1113-14 (10th Cir. 2002).

Share this post


Link to post
Share on other sites
4 minutes ago, BV80 said:

Read Abu-Samra.  It addresses both 1692e and f.   Here's what it regarding 1692f.

"[W]here the plaintiff's FDCPA claim arises from the instigation of a debt collection suit * * * [and] the debt collector * * * elects to call off the process server and abandon the collection suit before the plaintiff has been served, it cannot be said that the abandoned lawsuit constitutes an `attempt to collect' on the debt within the meaning of [§ 1692f.]" Johnson v. Riddle 305 F.3d 1107, 1113-14 (10th Cir. 2002).

That's all well and good, but we are not dealing with an abandoned lawsuit in the OP's situation.  They sued.  They never called off the suit thus far.  And courts have also ruled the opposite way with regard to other portions of FDCPA.....such as Phillips v. Asset Acceptance from the Seventh Circuit:

"[F]iling a complaint may cause actual harm to the debtor: a pending legal action, even pre-service, could be a red flag to the debtor's other creditors and anyone who runs a background or credit check, including landlords and employers. The debt collector may also use the pending legal action to pressure a debtor to pay back the debt informally, without serving the complaint—precisely the type of unfair practice prohibited by the FDCPA."

 

Additionally, you quoted Johnson v. Riddle, and I believe you cited it in error because that case was far more specific and quite distinguishable from the OP's situation.  Johnson v, Riddle was specifically about 1692(f)(1)--where the debt collector was accused of collecting amounts not legitimately due under any agreement--not 1692(f) as a whole. You really need to read that case because it's full of twists and turns...it took two trips to the appeals court, and both times, was remanded back to the trial court.  The trial court originally found no fault with the defendant---that decision was reversed and remanded.  Then, the trial court concluded that Riddle was shielded by the bona fide error defense, and that TOO was reversed and remanded.    In this case, they were trying to collect a statutory penalty for "shoplifting" as allowed by UT law--but they were trying to apply the "shoplifting" claim to a dishonored check for $2.64 and UT law did not consider a bad check to be shoplifting.  Here is a quote from the 2nd appeals court hearing on this one:

"Nevertheless, on August 14, 1997, Riddle filed suit in Utah state district court against Johnson seeking a $250-shoplifting penalty for a dishonored check Johnson wrote for $2.64 to 7-Eleven in September 1996. Id. After being served with the complaint and summons in that suit on August 24, 1997, Johnson paid Riddle $17.64. Riddle then dropped his suit against Johnson. Id."

That is why I believe you cited that case improperly--because the consumer WAS served in that case and there is no claim being made of suing without service in there.

If OP can show that Midland knew what it was doing, then none of the cases you mentioned apply to that situation.   Even the ruling itself in Abu-Samra is specifically targeted at 1692(i).  Thus, that court made no ruling at all as to how this issue would apply to (e), (f) , or any other portion aside from that.

 

 

Share this post


Link to post
Share on other sites
4 hours ago, kraftykrab said:

The problem with getting an attorney for this is that you will likely need one that is licensed to practice law in both states.  If you filed a counter claim in that case, you would be agreeing to that court's jurisdiction, and that means that any action you intend to take regarding any potential FDCPA violations would need to be done in your state.  At the same time, an attorney filing a motion on your behalf in the other state is engaging in the practice of law, so he/she needs to be licensed to practice law there too.

You might consider filing a motion to dismiss their case without an attorney, as it is a rather simple deal relatively speaking.  Basically, you would  state the fact that you have not been a resident of that state since 2014, and as such, the venue is improper.

 

I do not agree.  The violation does not rely on service---suing someone in the wrong jurisdiction is taking action that is not legally permissible, and is a violation in its own right.  When we talk about sewer service, of course, that's a violation too, but separate.  There are some simple ways that the OP might be able to show that Midland was well aware that he no longer lived in that state, and if he can show that, he's proven a violation IMO.

OP, check your credit reports.  Did Midland pull your reports?  Look in the section that shows credit inquiries....if they are not reporting on your report, they still could have pulled it.  And, if your current address is showing on that report, they have no excuse.  BV--consider this....the court papers will show the address that Midland listed for the OP to be served.  If they pulled his credit, and saw the new address, but still sued in that place and claimed that he lived at the old address, then they are caught red-handed.

Okay I checked my credit report and the address they served me at is not listed anywhere on my report per TransUnion or Equifax (the two I can see on creditkarma) as I have not lived at that address since 2012.  From 2012 to 2014 I did live at another address in Mo which is on my report.  My newest address in IL is not on my credit report at all from what  I see. The only thing I currently have on my credit report that is open and active are student loans, and while they do have my new address I guess they do not put them on my report? Midland does not show up on my credit report from either bureau nor does an inquiry. 

Share this post


Link to post
Share on other sites
2 hours ago, kraftykrab said:

That's all well and good, but we are not dealing with an abandoned lawsuit in the OP's situation.  They sued. 

It doesn't matter that it's not yet abandoned.  If the OP is never served, it will be abandoned.  The only way a lawsuit can be abandoned is if someone is sued.

 

2 hours ago, kraftykrab said:

And courts have also ruled the opposite way with regard to other portions of FDCPA.....such as Phillips v. Asset Acceptance from the Seventh Circuit:

Read the court's analysis of Philips in Abu-Samra.    The same analysis was provided in other IL rulings such as Taylor v. Blitt & Gaines and Gillis v. Blitt & Gaines.

 

2 hours ago, kraftykrab said:

Additionally, you quoted Johnson v. Riddle, and I believe you cited it in error because that case was far more specific and quite distinguishable from the OP's situation.  Johnson v, Riddle was specifically about 1692(f)(1)--where the debt collector was accused of collecting amounts not legitimately due under any agreement--not 1692(f) as a whole

I didn't cite it.  The IL federal court did in its ruling.

 

Share this post


Link to post
Share on other sites
21 minutes ago, BV80 said:

It doesn't matter that it's not yet abandoned.  If the OP is never served, it will be abandoned.  The only way a lawsuit can be abandoned is if someone is sued.

How do you explain all the times that sewer service results in default judgments--which you and I both know happens all the time--if "it will be abandoned" when there is no service?  I'm sorry, but you are basing your position off of an assumption that you and I both know is not valid.  You're assuming that no service automatically equals dismissal...well, there are multiple ways that that's just not the case all the time.  I personally had a lawsuit sit for just under a year--immediately after filing the lawsuit, the JDB sent notice to the court clerk to withhold service, and I was never served.  The case was dismissed by the JDB because while the lawsuit was sitting there, they were hounding me with collection calls.  I had no idea that they had sued.  Being that I was never served, I had no way that I could know.  They dropped their own case when I informed them that I had enough violations of multiple laws that I was going to act on unless they finally went away.  They chose to avoid getting caught.  They dismissed their case and I learned about it 2 years later.

Or, they could do what Midland and dozens of other bottom feeder debt collectors do every day....they could lie to the court, claim service was effected, and get a default judgment.  In which case, nothing will be abandoned, except for the right to due process.

 

27 minutes ago, BV80 said:

Read the court's analysis of Philips in Abu-Samra.    The same analysis was provided in other IL rulings such as Taylor v. Blitt & Gaines and Gillis v. Blitt & Gaines.

I did read it already.  I also read what other courts have said that contradict what youre saying, such as the Seventh Circuit decision I posted above.  Does not change the fact that the instances you mentioned are distinguishable from the OP's situation, so the outcome is not the same either.  The court was thinking aloud in its decision in Abu-Samra.....no court has the authority to issue a ruling on any matter that is not before that court.  And in that case, the one and only thing before the court was a question concerning 1692(i).  Thus, what I said is completely true--that the court made no such ruling.   And even if it had made such a ruling, there are other courts that disagree, as I already have shown.  But at the end of the day, this issue is distinguishable from those because different things have taken place. 

 

31 minutes ago, BV80 said:

I didn't cite it.  The IL federal court did in its ruling.

You pointed to it here as an example of what you are trying to say.  Did you read that case?  It goes all over the place, but one place that it does NOT go is:

--debt collector files lawsuit

--consumer is never served

--consumer sues for FDCPA and court dismisses because "you were not served, so no violation took place". 

I listed a portion of what the Tenth Circuit even said in that case above, and it is clear that in that case, they sued....the consumer responded....she paid the balance and they dismissed the case.  It's not at all the same as what is happening here, not even close.

Share this post


Link to post
Share on other sites
32 minutes ago, kraftykrab said:

How do you explain all the times that sewer service results in default judgments--which you and I both know happens all the time--if "it will be abandoned" when there is no service? 

Because the plaintiffs filed motions for a default judgment.  If the plaintiff doesn't file the motion and does nothing, the lawsuit becomes dormant and eventually dismissed by the court.

34 minutes ago, kraftykrab said:

I'm sorry, but you are basing your position off of an assumption that you and I both know is not valid. 

Please don't begin to tell me what I do and don't know.

34 minutes ago, kraftykrab said:

I did read it already.  I also read what other courts have said that contradict what youre saying, such as the Seventh Circuit decision I posted above.  Does not change the fact that the instances you mentioned are distinguishable from the OP's situation, so the outcome is not the same either.  The court was thinking aloud in its decision in Abu-Samra.....no court has the authority to issue a ruling on any matter that is not before that court.  And in that case, the one and only thing before the court was a question concerning 1692(i).  Thus, what I said is completely true--that the court made no such ruling.   And even if it had made such a ruling, there are other courts that disagree, as I already have shown.  But at the end of the day, this issue is distinguishable from those because different things have taken place. 

 The court in Abu-Samra (along with the other IL cases) addressed Phillips.   The issue in Phillips was not a lawsuit filed in the wrong venue.   It was in regard to time-barred lawsuits.

The type of harm at issue in Phillips was a debt collector's use of a pending legal action to "pressure a debtor to pay back the debt informally," without actually going forward with a (time barred) lawsuit.

Because a debt collector cannot obtain a default judgment until the debtor is subject to the jurisdiction of the collection court, the harm identified in Phillips—which may occur by the mere filing of a complaintis not implicated by § 1692i. See also Order, Knight, 14-CV-8169, at *3 (also distinguishing Phillips).

46 minutes ago, kraftykrab said:

You pointed to it here as an example of what you are trying to say. 

I cited it because the court cited it.  If it had not been included in the ruling and relied upon by the court, I never would have mentioned it.

It would be a bit more difficult to claim 1692e and f when no notice has been received and the OP doesn't have to do anything, especially when IL federal courts have ruled that filing suit in the wrong venue without service is not a violation. 

Let's say the OP files suit right now.   Most attorneys don't take on "iffy" cases.  Midland could offer to dismiss and wipe out the debt.   But they wouldn't pay his federal filing fee.   He'd be out that money.   If they decided to fight, they've got IL rulings on their side.

On the other hand, if the OP waits and is served, he has a slam-dunk violation.  If a default judgment is rendered, he has a slam-dunk violation.   A consumer attorney would gladly take that case and the OP wouldn't be out a penny.

Share this post


Link to post
Share on other sites
16 hours ago, BV80 said:

Because the plaintiffs filed motions for a default judgment.  If the plaintiff doesn't file the motion and does nothing, the lawsuit becomes dormant and eventually dismissed by the court.

So, earlier you said that if the OP is not served, the case will be dismissed.  Now you're changing that to add in an extra condition, and pretending this whole time that I'm in the wrong for saying what I've said.  With all respect to you, you could have just admitted an error in the interest of correct information and nothing bad would have happened.  We all know here that these JDBs often do this exact kind of thing on purpose for the goal of getting default judgments that they are not entitled to.  Midland alone has done this so darn many times that a simple search on google nets dozens and dozens of similar results.   It's a stretch from the earlier statement you made to this one. 

16 hours ago, BV80 said:

Please don't begin to tell me what I do and don't know.

Am I wrong?  Do you or do you not already know that Midland and others perform sewer service frequently?  There is no need for you to start taking this personally.  I simply spoke truth.  Most of us on this forum know that Midland and others do this all the time, and have been caught doing it plenty too.  So please, let's not start taking a civil discussion and making it into something personal, because nothing I posted was intended to be taken that way.

16 hours ago, BV80 said:

The court in Abu-Samra (along with the other IL cases) addressed Phillips.   The issue in Phillips was not a lawsuit filed in the wrong venue.   It was in regard to time-barred lawsuits.

Which, again, does not mirror the OP's situation.  We have zero evidence at this point to suggest that anything here is time-barred.  I fail to see the point of posting case law that is so distinguishable from the OP's situation.   Also again, that quote that you posted right there is 100% about 1692i, which is not what I ever was discussing.  The case law does not support this situation at all.

16 hours ago, BV80 said:

I cited it because the court cited it.  If it had not been included in the ruling and relied upon by the court, I never would have mentioned it.

I understand, but you did still cite it, correct?  Look, this is not me pointing fingers or blaming you.  I'm having a civil discussion about the case law and this situation.  That's it.  Nothing I have posted here was ever intended to ruffle anyone's feathers, so to speak.  Please consider that.  This has been a very civil discussion and I have every intention of keeping it that way, but you are sounding like you are offended.  My apologies if I posted anything that gave that impression, it was not at all my intention.

And that case is an interesting one because it made two trips to the appeals court, and both times the appeals court reversed and remanded.  But it does not fit in with the OP's situation either.  Again, not placing blame, just observing. 

16 hours ago, BV80 said:

It would be a bit more difficult to claim 1692e and f when no notice has been received and the OP doesn't have to do anything, especially when IL federal courts have ruled that filing suit in the wrong venue without service is not a violation. 

First, federal courts have ruled both ways--and I already pointed that out.  And, the IL ruling was on 1692i, which has already been covered.  Second, I was not advocating that OP run out right now and go file an FDCPA lawsuit.  I simply made the statement that for portions of FDCPA service is not required to complete the violation.  Courts have never placed a duty on the consumer, for example, to do anything when a JDB intentionally misrepresents anything about the collection of a debt.  A consumer does not have any required duty to do anything there.  Let's say a JDB reports falsely on your credit.  Let's say that they make a false claim to a court.  Let's say that they make a false claim to your employer, neighbor, etc.  There is NO requirement in FDCPA that that consumer do anything for the violation to be complete.  A false claim is a false claim, and requires no action from the consumer to violate the law.  The law itself is crystal clear that a debt collector may not make any false representations at all.  That speaks for itself.  If Midland had any reason to know that this was not the OP's correct address, but used it anyways, then they violated the law.  And especially, if the OP checks next week and sees that they claimed that they personally served him, that would be all the proof he needs.

 

But back to the IL federal court decision, can you find any court ruling up there where this situation occurred and they specifically ruled that no section of FDCPA could apply unless service was completed?  That makes no sense.  Or, let's throw a what-if into it.  Let's say the OP was never called.  Let's say he finds out about this lawsuit 4 years from now, when his wages get garnished out of the blue.  Do you mean to tell me that because "service was never completed" that the courts would say that no violation occurred?  I understand that for many laws, there must be actual damages before a violation would be considered actionable....but FDCPA is a strict liability statute so that's not the case here.  If they did wrong, you do not have to show how they caused you actual damages in order to prevail. 

Share this post


Link to post
Share on other sites
17 hours ago, BV80 said:

Let's say the OP files suit right now.   Most attorneys don't take on "iffy" cases.  Midland could offer to dismiss and wipe out the debt.   But they wouldn't pay his federal filing fee.   He'd be out that money.   If they decided to fight, they've got IL rulings on their side.

I never told the OP to "file suit right now".  I specifically mentioned looking further into this.  I suggested checking his credit reports to see if they contian any evidence that Midland knew what it was doing was wrong.  I do not know why that keeps getting missed in this.  I am not telling the OP to go out tomorrow and sue them.  Here are my actual words, from the first post I made in this thread:

On 2/6/2017 at 10:53 AM, kraftykrab said:

Or, you can see how they try to claim you were served and then act.  This would be my choice, but you need to stay on top of it and attack the minute you see that they claimed you were served.  With the second option, I would at the same time consider filing an action against them in your current state for violating FDCPA--suing you where you do not reside.

Notice how the only time I mentioned filing a lawsuit was once the OP already knew what Midland was claiming about service?  So why are we in this position now, when I've never advocated for filing right now? 

17 hours ago, BV80 said:

On the other hand, if the OP waits and is served, he has a slam-dunk violation.  If a default judgment is rendered, he has a slam-dunk violation.   A consumer attorney would gladly take that case and the OP wouldn't be out a penny.

Please see above, thanks.  You and I have said the same thing there.  The only reason I brought up anything different is with regard to FDCPA not always requiring service being completed for there to be a violation.  That's not the same thing as "file a lawsuit right now". 

Share this post


Link to post
Share on other sites
2 hours ago, kraftykrab said:

So, earlier you said that if the OP is not served, the case will be dismissed.  Now you're changing that to add in an extra condition, and pretending this whole time that I'm in the wrong for saying what I've said.  With all respect to you, you could have just admitted an error in the interest of correct information and nothing bad would have happened.  We all know here that these JDBs often do this exact kind of thing on purpose for the goal of getting default judgments that they are not entitled to.  Midland alone has done this so darn many times that a simple search on google nets dozens and dozens of similar results.   It's a stretch from the earlier statement you made to this one. 

You had mentioned "abandoned" lawsuits and said the lawsuit had not been abandoned and the plaintiff sued.   My comment was in regard to abandoned lawsuits.

Read my very first 2 posts in this thread and you will see I had already pointed out that there must no service AND a default judgment.  So, no.  I did not add an extra condition.  I assumed that you were still referring to the issue of abandoned lawsuits because I had responded to your comment about that issue.

 

2 hours ago, kraftykrab said:

Am I wrong?  Do you or do you not already know that Midland and others perform sewer service frequently?  There is no need for you to start taking this personally.  I simply spoke truth.  Most of us on this forum know that Midland and others do this all the time, and have been caught doing it plenty too.  So please, let's not start taking a civil discussion and making it into something personal, because nothing I posted was intended to be taken that way.

You make it personal when you tell you tell a poster that he is making a statement he knows is not valid.

 

2 hours ago, kraftykrab said:

Which, again, does not mirror the OP's situation.  We have zero evidence at this point to suggest that anything here is time-barred.  I fail to see the point of posting case law that is so distinguishable from the OP's situation.   Also again, that quote that you posted right there is 100% about 1692i, which is not what I ever was discussing.  The case law does not support this situation at all.

I never suggested that the OP's suit might be time-barred.  You're the one who first brought up Phillips.   I merely pointed out that the issue in Phillips was a time-barred lawsuit and that the IL court in Abu-Samra and other rulings had addressed the 7th Circuit's ruling.

 

2 hours ago, kraftykrab said:

I understand, but you did still cite it, correct?  Look, this is not me pointing fingers or blaming you.  I'm having a civil discussion about the case law and this situation.  That's it.  Nothing I have posted here was ever intended to ruffle anyone's feathers, so to speak.  Please consider that.  This has been a very civil discussion and I have every intention of keeping it that way, but you are sounding like you are offended.  My apologies if I posted anything that gave that impression, it was not at all my intention.

I never said you were blaming me for anything.   I only offered the explanation as to my reason for providing the case law because you didn't appear to understand why I provided it.

Quote

But back to the IL federal court decision, can you find any court ruling up there where this situation occurred and they specifically ruled that no section of FDCPA could apply unless service was completed? 

I don't think I've ever made the claim, so I'd have no reason to look for the case law.

In regard to the rest of your statements, I didn't claim you suggested filing a lawsuit right now.  Notice I said, "Let's say...".    I simply offered a scenario of what might happen if he did. 

Share this post


Link to post
Share on other sites
13 minutes ago, BV80 said:

Keep it in context.   You had mentioned "abandoned" lawsuits and said the lawsuit had not been abandoned and the plaintiff sued.   My comment was in regard to abandoned lawsuits.

We have discussed several things in this thread.  You cannot expect people to automatically which one of those things you are referring to if you do not mention which one your comment refers to.  This is not about me "not keeping it in context".  We talked about sewer service, default judgments, abandoning a lawsuit, settling a lawsuit, and so on.  We can only go off of what a given comment includes.  If you wish us to know that that's what your comment pointed back to, it would help for you to point that out.

15 minutes ago, BV80 said:

Read my very first 2 posts in this thread and you will see I had already pointed out that there must no service AND a default judgment.  So, no.  I did not add an extra condition. 

Again, not every comment you post will automatically link back to a specific other one, especially with several things being discussed at once.  You create the context when you post a comment.  If you leave that out, it's not someone else's responsibility to guess what you are thinking.

 

18 minutes ago, BV80 said:

You make it personal when you tell you tell a poster that he is making a statement he knows is not valid.

No, I spoke truth.  Nothing more and nothing less.  If you choose to read into that that somehow I'm making some kind of personal attack, that is YOUR choice.  I told the truth--you are fully aware of sewer service, are you not?

19 minutes ago, BV80 said:

I never suggested that the OP's suit might be time-barred.

Never claimed that you did.  I specifically mentioned that the CASE in question did.  That's not saying that you did.

22 minutes ago, BV80 said:

You're the one who first brought up Phillips.

Actually, no I am not.  You cited Abu-Samra, which is where I found Phillips mentioned.  Also, the only reason Phillips was mentioned here in greater detail is because that court specifically ruled that service is not necessary for the violation to be present. 

27 minutes ago, BV80 said:

I merely pointed out that the issue in Phillips was a time-barred lawsuit and that the IL court in Abu-Samra and other rulings had addressed the 7th Circuit's ruling.

Which has nothing to do with whether or not a violation actually occurred or not based on the status of service--being time-barred I mean.  Your contention is that ALL FDCPA claims involving a lawsuit already being filed require service to be complete before any violation could occur.  Phillips shows that this is not the case.  And what other courts are or are not persuaded is a coin toss--especially since the other courts you have brought up ALL were addressing the 1692i issue, with nothing more than a passing mention of another section of 1692 in an opinion.  Not one of those courts has issued a ruling that I'm aware of that specifies that for those other sections of 1692, service must be effected or there is no violation.  There's no way to get around the fact that those cases you mentioned all deal only with 1692i. 

 

As a side note, I find it interesting that a federal district court judge defied the then-current standard set by the appeals court in Phillips.  I was under the impression that at the district court level, they must comply with rulings from the higher courts.  I know that that's where the consumer can appeal their case as well, to bring the decision in line with what the higher courts have already decided.  But as far as I recall, judges are bound by oath to obey the rulings of higher courts whether they like the ruling or not. 

 

38 minutes ago, BV80 said:

I never said you were blaming me for anything.   I only offered the explanation as to my reason for providing the case law because you didn't appear to understand why I provided it. 

I did not understand because you left out your intended context.  When that happens, no one will be able to know what you are thinking.

39 minutes ago, BV80 said:

In regard to the rest of your statements, I didn't claim you suggested filing a lawsuit right now.  Notice I said, "Let's say...".    I simply offered a scenario of what might happen if he did. 

As a natural reaction, it appeared that you were making that implication.  Otherwise, I don't see the relevance of bringing up the "let's say" at that point.  Since no one was talking about the OP filing a lawsuit right now, it did not otherwise fit within the context of our discussion.  My apologies if I misconstrued that.

 

Either way, it looks as though you and I are saying some of the same things.  Thanks for allowing civil discussion.  I don't want to get too far off of the OP's points and I probably already did.  Hopefully, OP will find out their intention based off of their next move.  The way I see it, one of two things will happen next.  They will either claim that he's been personally served, etc, or the summons will be returned unserved.  From that point, it should be clear which way Midland intends to go, and that will dictate OP's course of action.

 

Share this post


Link to post
Share on other sites
13 minutes ago, kraftykrab said:

Your contention is that ALL FDCPA claims involving a lawsuit already being filed require service to be complete before any violation could occur. 

That is not my contention, nor did I ever imply it.   The specific issues we were discussing in the context of the OP's situation do not encompass all issues or sections of the FDCPA.

 

Share this post


Link to post
Share on other sites
38 minutes ago, BV80 said:

That is not my contention, nor did I ever imply it.   The specific issues we were discussing in the context of the OP's situation do not encompass all issues or sections of the FDCPA.

 

We discussed a lot of different issues, several sections of FDCPA, and you maintained the whole time your claim that until service is done, there's no violation.  You even tried to use case law to show that.  So yes, you did contend it, and you did imply it, when discussing more than just the OP's situation. I pointed out to you specifically that there are many ways to violate FDCPA, not just 1692i, and you have kept on the same course of disagreeing with what I've said this whole time....how else is one to take your posts, if you never were trying to make such a claim?   You tried to show through case law that those other sections of FDCPA are treated the same way by the courts---specifically, that no violation occurred if no service occurred.  

Share this post


Link to post
Share on other sites
5 minutes ago, kraftykrab said:

We discussed a lot of different issues, several sections of FDCPA, and you maintained the whole time your claim that until service is done, there's no violation.  You even tried to use case law to show that.  So yes, you did contend it, and you did imply it, when discussing more than just the OP's situation. I pointed out to you specifically that there are many ways to violate FDCPA, not just 1692i, and you have kept on the same course of disagreeing with what I've said this whole time....how else is one to take your posts, if you never were trying to make such a claim?   You tried to show through case law that those other sections of FDCPA are treated the same way by the courts---specifically, that no violation occurred if no service occurred.  

I don't know how better to explain that the sections we discussed in the context of the OP's situation do not encompass all issues OR sections of the FDCPA.   I'm not going to try again.

Move on.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this