iabulldog

Midland Funding sueing me - I counter sued

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So I got a letter June 21st from a Law firm representing Midland Funding LLC about an old Credit card debt I thought I had paid off.  So I immediately fired off with a debt Validation letter that was sent delivery confirmation. I was very specific on the debt validation letter and specified that they need to respond by 30-days and also stated that there client needed to stop reporting me to the collection agency while this debt was in dispute.  

In September I get a certified letter telling me I am being sued, and had my first mediation date, in that mediation date I was very clear that they violated the  FDCPA and was in defamation of character. We saw a judge but because the efile system was down and the lawyer for Midland had  no clue about the Debt validation I new mediation time was set for this Nov 7th. In that time I have since counter sued for violation of FDCPA, Time, Stress, and Defamation of Character.

So I submitted my counter suite and all the attachments and now I am just waiting... I am just nervous and not sure what to do from here as I have never sued or counter sued anyone before.

 

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4 hours ago, iabulldog said:

I was very specific on the debt validation letter and specified that they need to respond by 30-days and also stated that there client needed to stop reporting me to the collection agency while this debt was in dispute.  

They are not required to respond within 30 days.  They are only required to stop collection efforts until they do respond.  There is also no requirement they stop reporting either.  Continuing to report is not a violation of the FDCPA.

4 hours ago, iabulldog said:

In that time I have since counter sued for violation of FDCPA, Time, Stress, and Defamation of Character.

Hopefully it will motivate Midland to drop this because based on what you posted here being successful in this counter suit might be a long shot at best.

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4 hours ago, iabulldog said:

So I immediately fired off with a debt Validation letter that was sent delivery confirmation. I was very specific on the debt validation letter and specified that they need to respond by 30-days and also stated that there client needed to stop reporting me to the collection agency while this debt was in dispute.  

As @Clydesmompointed out, they don't have to respond within 30 days.  The 30-day time limit is placed upon consumers.

They do not have to stop reporting.  They only have to report that the debt is in dispute.

1.  Did the collection letter contain the 30-day notice?

2.  Did you send your dispute within 30 days of receiving that letter?

3.  Did they respond to you at all before filing suit?

4 hours ago, iabulldog said:

We saw a judge but because the efile system was down and the lawyer for Midland had  no clue about the Debt validation I new mediation time was set for this Nov 7th. In that time I have since counter sued for violation of FDCPA, Time, Stress, and Defamation of Character.

You will not be compensated for your time.  Nor will you be compensated for defamation of character.  If the debt is yours, they have every right to report it.

I doubt you'd receive any damages for stress, as well.  Again, they have a right to report as long as it's your debt and the information is accurate.

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@ Clydesmom and BV80  -   You are correct and I meant to say that I requested the debt validation within my 30-day window and was very clear of the dates in the letter. 

Where they violated the FDCPA is that they never provided me the proof of Debt Validation, as it clearly states in section 809 paragraph b ) That the debt collector must mail a copy of the Debt Validation to the consumer (me). They did not do that, instead they sued me two months later - in clear violation of FDCPA 

Also - In violation of the FCBA (Fair Credit Bill Act) when a consumer disputes a debt in writing the collection agency  have to report it as disputed by the consumer or some other wording  - which they did not, so I disputed on the credit reporting agencies end. 

 

§ 809.  Validation of debts

(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor.

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10 hours ago, iabulldog said:

Where they violated the FDCPA is that they never provided me the proof of Debt Validation, as it clearly states in section 809 paragraph b ) That the debt collector must mail a copy of the Debt Validation to the consumer (me). They did not do that, instead they sued me two months later - in clear violation of FDCPA 

This is where you have a problem.  It is not a clear cut violation.  Midland does not have to send the validation to you CMRR.  They do not have to prove you received it.  They only have to produce a copy of the letter they sent you validating and they are clear of the violation.  The chances are 99.5% that Midland will produce that letter as part of their defense of your counter claim and the courts will accept it as proof they complied with the law.

Again, if I were you I would hope that the mere filing of the counter claim simply sends Midland packing because based on what you have posted you do not appear to have a valid counter claim.

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I was told by a lawyer friend (family law) that in his experiance just produce a letter is not proof said letter was mailed. And could be argued they never sent it and burden of proof would then fall to the collector.

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The way he said it was just producing a typed letter doesnt prove it was mailed. Most Judges he has spoken with and knows,  that if one party is showing proof of shipment and deleivery confirmation on letters they expect the same from the other parties.

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47 minutes ago, iabulldog said:

The way he said it was just producing a typed letter doesnt prove it was mailed. Most Judges he has spoken with and knows,  that if one party is showing proof of shipment and deleivery confirmation on letters they expect the same from the other parties.

There is no court precedent to support that a debt collector must send any letter via certified mail.

 Although the plaintiffs claim to have never received the verification, "under the common law Mailbox Rule, `proper and timely mailing of a document raises a rebuttable presumption that it is received by the addressee.'" Mahon v. Credit Bureau of Placer County Inc., 171 F.3d 1197, 1202 (9th Cir. 1999).

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Actually just recently 

Third Circuit considers the operation of the mailbox rule presumption under FRE 301 and the circumstances in which the presumption may be rebutted; circuit distinguishes between strong and weak presumptions; summary judgment was vacated after the circuit concluded that the district court misapplied the presumption, in Lupyan v. Corinthian Colleges Inc., _ F.3d _ (3d Cir. Aug. 5, 2014) (No. 13–1843)

The mailbox rule established a general presumption that a letter properly directed and mailed is presumed to reach its destination at the regular time and be received by the person to whom it sent. However, the presumption may be rebutted. The Third Circuit recently considered the operation of the presumption under the mailbox rule and the circumstances in which the presumption could be burst or rebutte

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Third Circuit Review: Bursting The Presumption

 

The Third Circuit vacated summary judgment and remanded the case after concluding that the district court misapplied the presumption. The circuit noted that the presumption was not conclusive and could be rebutted. The circuit distinguished between strong and weak presumptions under the mailbox rule:

A “strong presumption” of receipt applies when notice is sent by certified mail, because it creates actual evidence of delivery in the form of a receipt. Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 279 (3d Cir. 2007) (emphasis added). A “weaker presumption” arises where delivery is sent via regular mail, for which no receipt, or other proof of delivery, is generated. Id. In the absence of actual proof of delivery, receipt can be proven circumstantially by introducing evidence of business practices or office customs pertaining to mail. United States v. Hannigan, 27 F.3d 890, 893 (3d Cir. 1994). This evidence may be in the form of a sworn statement. Id. at 895; Custer v. Murphy Oil USA, Inc., 503 F.3d 415, 420 (5th Cir. 2007) (“a sworn statement is credible evidence of mailing for the purposes of the mailbox rule.”). However, because the presumption is weak where proof of receipt is attempted solely by circumstantial evidence, we require the affiant to have “personal knowledge” of the procedures in place at the time of the mailing. Kyhn v. Shinseki, 716 F.3d 572, 574 (3d Cir. 2013).

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@iabulldog

You have conflicting opinions among the circuit courts of appeals.

You've already filed a counterclaim.  Hopefully, the debt collector will fold and you'll prevail.   If that's not the case, be prepared to argue your claims.

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UPDATE:  As of  today 11/7/17  Midlund funding has agreed in mitigation to fold and wipe the debt clean. They have also agreed to show paid in full and contact the credit agencies. This was all agreed to be done with proof prior to Dec 1st, 2017 otherwise we will be going to court.  

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Good job. iabulldog. let us know how it plays out. Funny how once someone walks over the bridge the trolls comes out.

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