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Please HELP..being by Midland Funding in MI


LabLady
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I was served with a S&C a week ago from Midland Funding. Since then I have spent some time researching what to do, and I have decided to fight them and have started to prepare my answer. I do not have enough money for an attorney and I feel pretty confident after finding this website that I can beat them with a little help.

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

2. What is the name of the law firm handling the suit? Smith, Perry, & Pettway... not sure if that is the correct name of the firm, but those are the names listed

3. How much are you being sued for? $3,262.05

4. Who is the original creditor?  Amazon.com

5. How do you know you are being sued? Served

6. How were you served? In person

7. Was the service legal as required by your state? 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

9. What state and county do you live in? Michigan, Mecosta County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Not sure

11. What is the SOL on the debt?  --think it is 6 or 7 years for MI

12. What is the status of your case? I don't know what this means.... they have served me with S&C

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)Have not had any contact with either

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? I have 21 days to file a written answer, no questionnaire

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

1. The Defendant resides within this court's venue and venue is proper in this court.

2. The amount in controversy is within this court's jurisdiction.

3. Plaintiff, Midland Funding LLC owns portfolios of consumer receivables, which it attempts to collect. When working with individual customers, Plaintiff, Midland Funding LLC and its affiliates generally attempt to contact consumers like Defendant through several means, all in a effort to establish contact and to resolve the underlying obligation. In doing so, Midland Funding LLC attempts to assess each consumer's willingness to pay, through phone calls, letters or other means. Midland Finding LLC attempts to exclude customers from its collection efforts, where Midland Funding LLC believes those consumers are facing extenuating circumstances or hardships that would prevent them from making any payments.

4. When Midland Funding LLC contacts consumers, it strives to treat customers with respect, compassion and integrity. Midland Funding LLC works with customers in an effort to find mutually beneficial solutions, often offering discounts, hardship plans, and payment options. Midland Funding LLC's efforts are aimed at working with consumers to repay their obligations and to attain financial recovery. Midland Funding LLC strives to engage in dialogue that is honorable and constructive, and to play a positive role in consumer's lives.

5. Despite Midland Funding LLC's efforts to reach costumers and resolve customer's obligations, only a percentage of customers choose to engage with Midland Funding LLC. Those who do not are often offered discounts or payment plans that are intended to suit their needs. Midland Funding LLC would prefer to work with customers to establish voluntary payment arrangements resulting in the resolution of any underlying obligations. However, the vast majority of Midland Funding LLC's consumers ignore calls or letters, and some simply refuse to repay their obligations despite an apparent ability to do so. When this happens, Midland Funding LLC must decide then whether to pursue collection through legal channels, including litigation like the present action against Defendant. Although the Account is now in litigation, Plaintiff remains willing to explore a mutually-beneficial solution through voluntary payment arrangements, if possible.

6. The Defendant had an agreement for a/an CREDIT CARD, originally with SYNCHRONY BANK.

7. The Defendant has defaulted in payments on the above mentioned account, said account being shown in the attached Affidavit and Statement of Account.

8. Midland Funding LLC purchased the account shown in the attached Affidavit and Statement of Account and was assigned all rights to the account in the normal course of business.

9. Midland Funding LLC has notified the Defendant of the abovementioned account and the Defendant has failed to pay for same.

10. There is presently due and owing over and above all legal counter-claims the sum of $3,262.05. See attached Affidavit and Statement of Account.

11. Midland Funding LLC requests Judgment for $3,262.05 plus court costs and statutory fees pursuant to MCL 600.2441.

 

 

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Attached to the S&C, is a Summary of Account Activity from 07/15/2015 that looks like they printed it from the internet, along with another from 01/15/2016 that looks the same. There is an affidavit from a lady in Minnesota that says she has access to my records and blah, blah.... however it is dated June 09, and I was served August 28 2017. I believe that you are supposed to be served within 10 days for the affidavit to be admitted as evidence? There is a Bill of Sale that is signed by some attorney and it also looks like a word document, along with a Purchase Price Reconciliation/Funding Instructions, again that look like a word document dated December 21, 2016. There is another Affidavit of Sale of Original Creditor dated February 1, 2017... only says a pool of accounts was sold. The last piece of paper stapled to the C&S is a document that has alleged information about my account, with this written at the bottom...

Data printed from electronic records provided by Synchrony Bank formerly known as GE Capitol Retail Bank pursuant to the Bill of Sale/Assignment of Accounts transferred on or about 12/29/2016 in connection with the sale of accounts from Synchrony Bank formally known as GE Capitol retail Bank to Midland Funding, LLC.

Again, it looks like a word document.

So, I have started to prepare my answer, in which I also have to submit my affirmative defenses. Do I need to submit a counter-claim? Did so much reading.. I can't remember.... I also read about Discovery, and read that I simply just need to ask for this in court, or do I need to put that somewhere else?

Any help or advice that I could get would be greatly appreciated... a lot of threads I read were pretty old, so I hope that I still have a chance at beating these guys.

 

 

 

 

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I have never seen a complaint written this way. It looks like they are suing on a breach of contract cause of action.

What exactly does that affidavit state? Not blah, blah, blah. The affidavit can still be used.

Was there any actual account statements attached to the complaint?

What companies are listed in those bills of sale?

I would not submit your answer just yet. Type it out.

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The good thing for you is the affidavit does not comply with Rule 902. It wont meet the business records exception requirements.

The other thing is that they cannot redact a document to cover up information. These documents are not reliable. I did write an argument a few years ago to back this claim that the court agreed with. I do not have it anymore.

With a little work, this should go away.

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Look at the affidavit of sale by original creditor. It states the sale took place between Synchrony and Midland Funding. It was not signed until February 2017. It is signed by Midland Funding, not Synchrony. It was signed in Minnesota.

This is not a affidavit to support the bill of sale. The bill of sale was created not by synchrony bank either.

These documents were created for the sole purpose of litigation and the reliability of them is in question. There is ample case law to support this. You have to attack standing in this case. They cannot prove it.

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Rule 803(6) - Records of regularly conducted business activity.

(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness.

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Post your answer

Rule 902(11) - Self-Authenticating

Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

(12) Certified Foreign Records of a Regularly C

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25 minutes ago, bmc100 said:

Look at the affidavit of sale by original creditor. It states the sale took place between Synchrony and Midland Funding. It was not signed until February 2017. It is signed by Midland Funding, not Synchrony. It was signed in Minnesota.

This is not a affidavit to support the bill of sale. The bill of sale was created not by synchrony bank either.

These documents were created for the sole purpose of litigation and the reliability of them is in question. There is ample case law to support this. You have to attack standing in this case. They cannot prove it.

The sale took place around 12/21/2016.  The affidavit of sale was signed about 6 weeks after the sale.   How is that preparation for litigation?

How do you know the bill of sale was not created and signed by Synchrony?

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7 minutes ago, BV80 said:

The sale took place around 12/21/2016.  The affidavit of sale was signed about 6 weeks after the sale.   How is that preparation for litigation?

How do you know the bill of sale was not created and signed by Synchrony?

The affidavit to support the sale was created by Midland, not Synchrony. In every case I have helped with, the affidavit was signed by the seller and supported by an affidavit from the seller.

In some assignments, both parties sign the bill of sale.

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1 minute ago, bmc100 said:

The affidavit to support the sale was created by Midland, not Synchrony. In every case I have helped with, the affidavit was signed by the seller, not the assignee.

Have you researched the name of the person who signed the affidavit (Shannon Wiltgen)?  

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She does work for Synchrony. I looked her up on Linkedin. It states the creditor has a process of determining errors on accounts, yet the name of the sales agreement is redacted. She never explains what the process is. This is where the sales agreement comes in handy. It will state the seller makes no warranties on the accuracy of the records. The entire affidavit was created using a computer. She never states the record  was created as the regular practice of doing business. Rule 803(6) Therefore the affidavit was made for the sole purpose of litigation using Rule 803(6) - Business Records Exception.

Look at the affidavit of Donna Jarve. I found her, she lives in MN just outside of St. Cloud. She only went to high school. Look at the date June 09 2017. The June and 2017 are a lighter color than the 09, which is darker and is a different font. They are a different font than the text of the affidavit.

The only way to do this is by using a typewriter or a stamp when the rest of the affidavit was created using a computer. All Donna did was rubber stamp the affidavit that someone else created on her behalf. If she did write the affidavit, it was all be the same font and text.

As far as the funding instructions, the sales agreement would state what was the cut-off period. Is this really the cut off date or a record made for the sole purpose of litigation to cover up the fact they lack documents? Was the agreement made in August 2016, the sales agreement would show this.

This is where their evidence falls apart everytime. They will never bring forth the sales agreement. BV, it has been a long time. Thank you for challenging me.

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Shannon Wiltigen's affidavit was created to lay a foundation for the lack of foundation from Donna Jarve's affidavit. Donna never laid a foundation under the business records exception. A 2 page affidavit full of garbage that means nothing without a foundation.

In order to self-authenticate the record has to comply with 803(6). Neither one of these affidavits comply with Rule 803(6). If the records are not admissible under 803(6), they are also not admissible under Rule 902(11).

Donna states she has personal knowledge.

Never states the records were created during the regular course of business.

Never states it was a regular practice to maintain the record.

Donna also states she is an officer, but does not state her title or job function. She went to Roosevelt High School in Portland, OR.

Lynne Fisher signed the Bill of Sale that us redacted as an attorney in fact or in other words a Power of Attorney. Any reference to the sales agreement is redacted. We know they will claim it is privileged information. It is still part of the sale.

 

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15 minutes ago, bmc100 said:

She does work for Synchrony. I looked her up on Linkedin. It states the creditor has a process of determining errors on accounts, yet the name of the sales agreement is redacted. She never explains what the process is. This is where the sales agreement comes in handy. It will state the seller makes no warranties on the accuracy of the records. The entire affidavit was created using a computer. She never states the record  was created as the regular practice of doing business. Rule 803(6)(c ) Therefore the affidavit was made for the sole purpose of litigation using Rule 803(6) - Business Records Exception.

What case law states that the affidavit must explain the "process"? 

What case law states that an affidavit is a business record?   

I don't think it matters that the affidavit was created using a computer.   What precedent states that creating an affidavit by computer discredits it?

The affidavit was created about 6 weeks after the sale.   Where's your proof that it was created for litigation?

 

20 minutes ago, bmc100 said:

Look at the affidavit of Donna Jarve. I found her, she lives in MN just outside of St. Cloud. She only went to high school. Look at the date June 09 2017. The June and 2017 are a lighter color than the 09, which is darker and is a different font. They are a different font than the text of the affidavit.

The only way to do this is by using a typewriter or a stamp when the rest of the affidavit was created using a computer. All Donna did was rubber stamp the affidavit that someone else created on her behalf. If she did write the affidavit, it was all be the same font and text.

Personally, I would not use that argument.  First, your information about Jarve was found on the internet.  Second, if lack of a college education casts doubt on an affiant, many consumers wouldn't be able to sign their own affidavits.

In regard to the appearance of the affidavit, is the OP an expert on computers and font?

What proof do you have that Donna merely "rubber stamped" an affidavit?   How do you know she didn't physically sign it?

Attorneys create affidavits for their clients to sign.  An affidavit created by one person but signed by the person for whom it was created is perfectly legal.

11 minutes ago, bmc100 said:

Shannon Wiltigen's affidavit was created to lay a foundation for the lack of foundation from Donna Jarve's affidavit.

How do you know this for a fact?

If this were to reach the MSJ stage I would approach this on the basis of the CFPB Order against Encore (including Midland).  Page 34 of the following link:

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

"Prohibition Against Threatening or Filing Lawsuits Without An Intent to Prove the Debt If Contested"

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;

Page 4 of the Order defines "Encore" as including Midland Funding.

Neither the Bill of Sale or Affidavit of Sale make a "specific reference to the particular Debt being collected upon".   Midland is in direct defiance of the requirements made upon it by the CFPB.

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If you looked at the sales agreement, it will state the seller makes no warranties of accuracy of the records. The affidavit is not a business record, but the bill of sale and all of the other documents are business records. The declarant has to clearly state those 3 foundations for the affidavit to support the business records. What I am saying is the challenge the reliability and trustworthiness of the affidavit and the trustworthiness of the declarant. 

Attorneys also have their clients review the affidavit to certify it's accuracy. We know Midland does not work this way given how many lawsuits they file everyday.

 

 

 

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1 hour ago, bmc100 said:

If you looked at the sales agreement, it will state the seller makes no warranties of accuracy of the records. The affidavit is not a business record, but the bill of sale and all of the other documents are business records. The declarant has to clearly state those 3 foundations for the affidavit to support the business records. What I am saying is the challenge the reliability and trustworthiness of the affidavit and the trustworthiness of the declarant. 

Attorneys also have their clients review the affidavit to certify it's accuracy. We know Midland does not work this way given how many lawsuits they file everyday.

 

 

 

I agree to challenge the trustworthiness.  However, I think the Synchrony affidavit is offered to show that it sold accounts to Midland.   It's not being offered to authenticate business records such as the credit card statements.   That's why it doesn't contain the requirements listed by 803(6).  It's only provided to show that Synchrony sold accounts to Midland.   Nothing more.

Midland is using that affidavit to attempt to prove it owns the OP's account. 

Do you have case law on point regarding the lack of warranties of accuracy and bills of sale?  If you don't, then your argument is merely a conclusion.

While we know that Midland does not have its affiants review affidavits, again, it's merely a conclusion.

You said:

Quote

In every case I have helped with, the affidavit was signed by the seller and supported by an affidavit from the seller.

That's not the case this time.   You have an affidavit from the OC.  That's why I suggested bringing up the CFPB Order that documents evidencing a transfer of ownership must reference the specific account.  Neither the bill of sale or the OC's affidavit specify the account in question.

Synchrony's cardmember agreement has an arbitration provision.   Why should the OP not MTC arbitration?

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I read your link BV80... and I think that those are good routes to go. I am still mulling over arbitration, I think I understand that will cost more for Midland, so they would be more willing to stop litigation, but I am wondering how much more it will cost me as well. I'm looking to go the least expensive route here, and I think I may have enough to beat them outright in court myself, if I do everything right and go through all the proper channels.

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ANSWER

 

            NOW COMES the Defendant, Tiffany Waddell, pro per, who answers the Plaintiff’s Complaint as follows:

1. The Defendant admits this allegation in its entirety.

2. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein.

3. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation(s) contained therein, and on that basis generally and specifically denies each allegation, to the extent there is/are specific allegation(s) against the defendant.

4. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation(s) contained therein, and on that basis generally and specifically denies each allegation, to the extent there is/are specific allegation(s) against the defendant.

5. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation(s) contained therein, and on that basis generally and specifically denies each allegation, to the extent there is/are specific allegation(s) against the defendant.

6. The Defendant is at this time without the knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and therefore denies. Plaintiff has failed to provide a sworn copy of the referenced “agreement” with its Complaint pursuant to MCR. 2.113(F)(1), or explained failure to do so.

7. The Defendant is at this time without the knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and on that basis generally and specifically denies each allegation. Plaintiff’s and Plaintiff’s Affiants’ conclusory statements are offered without attachment of sworn copies of the business records referenced in the Complaint and Affidavit of Account.

8. The Defendant is at this time without the knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and on that basis generally and specifically denies each allegation. Plaintiff’s and Plaintiff’s Affiants’ conclusory statements are offered without attachment of sworn copies of the business records referenced in the Complaint and Affidavit of Account.

9. The Defendant is at this time without the knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and on that basis generally and specifically denies each allegation. Plaintiff has failed to attach sworn copies of the referenced alleged account records demonstrating the sum of $3,262.05, or sworn copies of business records demonstrating in its title and interest in Defendant’s alleged account to maintain its claim.

10. The Defendant is at this time without the knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and on that basis generally and specifically denies each allegation. Plaintiff has failed to attach sworn copies of the referenced alleged account records demonstrating the sum of $3,262.05, or sworn copies of business records demonstrating in its title and interest in account records demonstrating the sum of $3,262.05, or sworn copies of business records demonstrating in its title and interest in Defendant’s alleged account to maintain its claim.

11. The Defendant is at this time without the knowledge or information sufficient to form a belief as to the truth of the allegations contained therein, and on that basis generally and specifically denies each allegation. Plaintiff has failed to attach sworn copies of the referenced alleged account records demonstrating the sum of $3,262.05, or sworn copies of business records demonstrating in its title and interest in Defendant’s alleged account to maintain its claim.

AFFIRMATIVE DEFENSES

  1. Plaintiff, as Defendant is informed and believes, lacks the legal standing to bring and maintain the action. Plaintiff has not presented evidence of title to alleged account nor has Plaintiff presented proof of assignment to the alleged account, therefore Plaintiff has failed to state a claim.

  2. Plaintiff has not presented evidence that alleged account was one of the “pool of charge-off accounts” acquired in the Affidavit of Sale.

  3. Plaintiff has failed to provide Purchase Agreement in its entirety, but instead had submitted dacted documents inconsistent with claim.

  4. Numerous class action lawsuits against Midland Funding LLC and their parent company Encore have been filed due to violation of the FDCPA. The following are examples of these violations: Benoit v. Midland Funding LLC, et al., Case No. 3:14-CV-00290, in the U.S. District Court for Southern District of Texas, Olinick v. Fulton, Friedman & Gullace, LLP et al, Zelenitz v. Midland Funding, LLC San Diego County Superior Court Case No. 37-2008-00077880-CL-CL-CTL, Midland Credit Management Inc. Telephone Consumer Protection Act Litigation, in the U.S. District Court for the Southern District of California, Case No. 11-MD-2286 MMA(MDD).

  5. Plaintiff has blatantly disobeyed the CFPB order, as neither the Bill of Sale or Affidavit of Sale make a "specific reference to the particular Debt being collected upon", as pursuant to CFPB(131)(a)(iii).

  6. Plaintiff has blatantly disobeyed the CFPB order, as Plaintiff is prohibited from Initiating a Legal Collection lawsuit unless in possession of the following” CFPB(131)(a)(i), and any one of following CFPB(131)(a)(iv).

  7. There is a Failure of Consideration between the Plaintiff and Defendant, no payments have been exchanged between the parties regarding the alleged account.

  8. Plaintiff has not proven the amount of the alleged account is valid or accurate. Plaintiff has proved no evidence the Defendant made a purchase on the alleged account.

  9. Plaintiff’s failure to state a claim to cite applicable state laws, there is no basis for the lawsuit.

  10. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or counterclaims at a later date.

WHEREFORE, Defendant respectfully asks the Court to dismiss this case with prejudice.

 

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