Jump to content

Stay of enforcement against Midland? Help - Utah


alb
 Share

Recommended Posts

New here and would much rather be in the wine forum.  But I could use any positive, constructive legal advice

My employer was issued a writ of garnishment against me last Tuesday. I inquired who was listed as the Plaintiff.  It is Midland Funding represent by a firm here, in SLC Utah. 

The basics: CC debt, last purchase March 2010, last payment May 2010.  Time-barred debt outside both 4 and 6 year SOL in Utah. Midland has sued and won judgment (unbeknownst to me) against me.  I learned of the judgment when a writ of garnishment was served last week. 

 

Long version: It took me completely by surprise as aside from a few recent cc's and loans with co-signers (all of which are current and opened within the past year), I have not opened a credit card since 2006 and have not charged anything since March of 2010, nor made a payment since May 2010. I know this because we had a very traumatic life event in March 2010 and other issues with my children took priority. 

It is possible that I've received notices in the mail, but based on life events I can say with 100% certainty that I've never reached out to any past creditors with a promise to pay or otherwise. Nor am I aware of notices of court proceedings or a judgment against me. 

I was finally able to find who the original creditor was through a call to the Plaintiff's attorney, who also indicated that papers had been served to me in April. When I inquired about a signature for these papers they stated there was no signature. They did give me information that the creditor was Barclays of Delaware. Through my credit report I was able to locate their phone number. The agent at Barclay's was able to easily give me the last purchase date and last payment date. Amazingly I was able to find a handful of old cc statements, which supports the info given.  Balance left owing was $251. Now being sued for over $2K

My question is this: What are my chances of setting aside judgement? Even if slim to none am I going about it in the right way? How do I word my evidence within a temporary stay?

I am trying to prepare a motion to temporarily stay enforcement of judgement in conjunction with a motion to set aside judgement. If I understand correctly, in Utah, when doing this, you essentially have to lay out your legal argument as well as provide your evidence in support of your defense within the motion. I believe so that a judge can see if your argument would even merit a trial if you got that far. I can't find any examples of what this looks like. Is it just written out in layman's terms and bullet pointed under the legal code you are trying to establish has been violated? My argument primarily centers around the SOL. My time frame satisfies both the criteria for the 4 year and 6 year time-barred debt limitations. I know this would have had to have been asserted at the time of response to their claim. And maybe I am out of luck here because the judgement has been awarded. It seems to me that a judgment should be void if it were created outside of the legal time frame to do so.  There do not seem to be any issues that make the SOL questionable. The information was so readily available that I can't believe Midland funding could claim there were any misinterpretations. And as such it seems a clear case to me that it is a violation of FDCPA as well.

Thanks for any constructive help

 

Link to comment
Share on other sites

You can handle this on your own but there are a lot of things going on here, and time is of utmost importance since they are now taking money away from you.  Because there's a decent chance you have FDCPA claims, I would first suggest talking to a consumer rights lawyer.  Most will take your case on contingency, meaning you won't have to pay anything up front and their fees will be paid by Midland when they win the case.  Also, those that will take your case on contingency have the greatest motivation to be straight with you about the likelihood of having a FDCPA case to begin with, since they won't get paid if they don't win your case.

  • Like 1
  • Thanks 1
Link to comment
Share on other sites

I agree with Harry about consulting a lawyer. While I suspect the whole lawsuit and judgement took place within SOL (Midland doesn't make those kind of mistakes), there may be aspects of Utah law that will give you a second swing at this if original service was flawed, resulting in an uncontested judgment that could be vacated. 

Link to comment
Share on other sites

On 11/15/2017 at 8:19 AM, Goody_Ouchless said:

I agree with Harry about consulting a lawyer. While I suspect the whole lawsuit and judgement took place within SOL (Midland doesn't make those kind of mistakes), there may be aspects of Utah law that will give you a second swing at this if original service was flawed, resulting in an uncontested judgment that could be vacated. 

The last charge was March 19, 2010. Last payment May 2010. Initial summons April 21, 2017. So at the earliest their claim would have been 120 days prior. Utah SOL is 4 years for cc debt; 6 yrs in some other instances.

My life situation was unusual between 2010 and 2015. That’s  why I can say with certainty there was no contact with orig creditor or Midland that would have tolled the SOL.

Whether they make “mistakes” or not; I don’t think they really care. I don’t think they investigate; I would guess they have a very crude screening process. With the accounts that pass they just throw as many out there to see what sticks. But I could be wrong 

 

Link to comment
Share on other sites

On 11/15/2017 at 6:42 AM, Harry Seaward said:

You can handle this on your own but there are a lot of things going on here, and time is of utmost importance since they are now taking money away from you.  Because there's a decent chance you have FDCPA claims, I would first suggest talking to a consumer rights lawyer.  Most will take your case on contingency, meaning you won't have to pay anything up front and their fees will be paid by Midland when they win the case.  Also, those that will take your case on contingency have the greatest motivation to be straight with you about the likelihood of having a FDCPA case to begin with, since they won't get paid if they don't win your case.

Thank you. Yes. I’ve filed the stay and the motion to set aside. Now I’m answering the writ of garnishment. Timing is so tight that I feel like I had no time to consult an atty; and truthfully with 3 little girls to support I have to be very strategic with the time I take off from work; there is no margin of error. 

Im praying the judge will stay and set aside judgment. Maybe that would be the springboard for an atty to acknowledge there might be some merit. 

Can I file a motion to join the two hearings? The garnishment hearing and the judgment hearing??

Link to comment
Share on other sites

Not to be harsh, but it sounds like you are trying to "insist" that this situation conform to your word view. 

1) Whether or not you want to believe it, Midland is part of a 1 billion dollar publicly traded company. They do their homework - it's not hard with modern technology and computerized records. 

2) You can try to believe CC debt is four years in Utah, but is enforced as six. They appear to have a borrowing statute, but that would probably require a lawyer to take full advantage of. Which brings us to...

3) The court, in all likelihood, isn't going to care about your kids or "unusual" life detour. 

In conclusion, per a site that covers SOL "Utah courts generally apply law of the card issuer's state." That means three year SOL per Barclays agreement. I'll let others chime in, but if DE SOL applies, then isn't this a slam-dunk FDCPA claim, since suit was brought at just short of six years and April 2017 is still within one year for FDCPA SOL?

Link to comment
Share on other sites

21 hours ago, alb said:

Thank you. Yes. I’ve filed the stay and the motion to set aside. Now I’m answering the writ of garnishment. Timing is so tight that I feel like I had no time to consult an atty; and truthfully with 3 little girls to support I have to be very strategic with the time I take off from work; there is no margin of error. 

Im praying the judge will stay and set aside judgment. Maybe that would be the springboard for an atty to acknowledge there might be some merit. 

Can I file a motion to join the two hearings? The garnishment hearing and the judgment hearing??

Have you reviewed the documents in the court file?   Yes, they're supposed to serve you within 120 days of filing the complaint, but that time can be extended by the court.

You need to find out when the lawsuit was filed.  If it was filed within the SOL, then you need to see if an extension for service was requested and granted.

Link to comment
Share on other sites

23 hours ago, alb said:

The last charge was March 19, 2010. Last payment May 2010. Initial summons April 21, 2017.

This is a pretty solid  FDCPA violation. I would make the time to consult with an attorney. It's going to be the fastest resolution in the sense that whoever you use will know Midland's attorneys well and can have this thing wrapped up in a day. 

Link to comment
Share on other sites

5 hours ago, Goody_Ouchless said:

since suit was brought at just short of six years

OP said last payment was April 2010 and summons was May 2017. 

I'm with you that it's rare for Midland to make these kinds of errors, but I think the fact that they are outside of the SOL for pretty much the entire country gives them a pretty solid shot at beating the FDCPA claim on a bona fide error defense. In all probability, they would probably accept a mutual walk-away instead of fighting over $2,000.

Link to comment
Share on other sites

1 hour ago, Clydesmom said:

No, but it isn't rare for them to fabricate some sort of mystery payment out of no where to extend the SOL so that they can sue.

No publicly traded company under the scrutiny that they are under is going to fabricate evidence for a couple grand. That being said, this one is perplexing.

Link to comment
Share on other sites

4 hours ago, Goody_Ouchless said:

No publicly traded company under the scrutiny that they are under is going to fabricate evidence for a couple grand. That being said, this one is perplexing.

They state there was a payment made sometime later.  The hope is the consumer lets them get a default judgment and never questions it.  95% of the time Midland likely gets away with it.  If a consumer challenges that payment they back down and dismiss before getting busted.

Link to comment
Share on other sites

11 hours ago, Clydesmom said:

They state there was a payment made sometime later.  The hope is the consumer lets them get a default judgment and never questions it.  95% of the time Midland likely gets away with it.  If a consumer challenges that payment they back down and dismiss before getting busted.

Your theory contradicts itself. They don't need to make up fictitious payment data to get a default judgment, and they would get caught every time on a contested case. The risk for Midland far outweighs the gain. 

Link to comment
Share on other sites

First, let me apologize - I started responding without reading first post in detail, so my responses were nonsensical.

Let' start over:

1) If facts are as you described, then the only logical course of action is to get a lawyer to file and FDCPA claim on contingency. As you correctly stated, trying to overturn judgment based on an affirmative defense that was never asserted would appear to be an uphill climb.

2) Given your situation between 2010 - 2015, which I assume led to your needing co-signers for current credit - is it at all possible that this judgement is not for the Barclay's account that defaulted in 2010? Could plaintiff's lawyer have given you OC's name in error? Could you have had two Barclay's cards, or could this firm have your Barclay's account on file and given it to you by mistake, when, for example, the 2017 judgement is for an XYZ Credit Card?

 

Link to comment
Share on other sites

On 11/20/2017 at 7:07 PM, Goody_Ouchless said:

No publicly traded company under the scrutiny that they are under is going to fabricate evidence for a couple grand. That being said, this one is perplexing.

Perhaps not the company itself  but I can tell you first-hand that the typical bottom-feeding JDB attorney certainly will.  Do not put it past a JDB attorney to try anything that is at best unethical and at worst illegal.  They know that most pro se defendants are not familiar with case law, rules and procedures like the long time seasoned members here are.  Most first time pro se's do not know that a mere objection to anything they bring up will likely get it thrown out.  

One who sued me, Anh Regent out of Houston, used similar tactics in virtually every lawsuit in which the defendant fought back.   I was awarded about $800 in sanctions for abuse of discovery and over $3,000 for FDCPA violations.

http://debt-suit-litigation-in-texas.blogspot.com/2013/09/anh-huynh-regent-debt-collection.html

Link to comment
Share on other sites

3 hours ago, texasrocker said:

Perhaps not the company itself  but I can tell you first-hand that the typical bottom-feeding JDB attorney certainly will.  Do not put it past a JDB attorney to try anything that is at best unethical and at worst illegal.  They know that most pro se defendants are not familiar with case law, rules and procedures like the long time seasoned members here are.  Most first time pro se's do not know that a mere objection to anything they bring up will likely get it thrown out.  

One who sued me, Anh Regent out of Houston, used similar tactics in virtually every lawsuit in which the defendant fought back.   I was awarded about $800 in sanctions for abuse of discovery and over $3,000 for FDCPA violations.

http://debt-suit-litigation-in-texas.blogspot.com/2013/09/anh-huynh-regent-debt-collection.html

While I agree it can happen, I don't believe it's typical.

Most credit card lawsuits end up in default judgments.  Unless a court requires a date of last payment to be provided in the complaint in order to issue a default judgment, it's not necessary for an attorney to take the chance of listing a false payment because a date isn't even required.

Link to comment
Share on other sites

5 hours ago, BV80 said:
 

While I agree it can happen, I don't believe it's typical.

Most credit card lawsuits end up in default judgments.  Unless a court requires a date of last payment to be provided in the complaint in order to issue a default judgment, it's not necessary for an attorney to take the chance of listing a false payment because a date isn't even required.

I didn't mean it was typical to list a false payment but it is very typical of them to pull all sorts of unscrupulous antics.  It has been discussed here several times.

Link to comment
Share on other sites

  • 2 weeks later...

Thank you for all of the replies.

 

On ‎11‎/‎20‎/‎2017 at 3:26 PM, Clydesmom said:

No, but it isn't rare for them to fabricate some sort of mystery payment out of no where to extend the SOL so that they can sue.

I have called the original creditor and recorded the phone call. And again asked last transaction date. And last payment date.  Original creditor gave me the date of both.

I was incorrect about last payment date.  It was actually April 1, 2010.  She confirmed by phone both dates in the earlier part of 2010.

The atty's for plaintiff insist it is within the SOL, but they've provided no evidence to support this.  They opposed my motion to set aside judgment (which I was expecting)

and while they summarily denied all of the points I made that included specific dates; they provided no evidence to the contrary.

 

I do believe they fabricate payments.  When I spoke to the original creditor a few weeks ago (before I recorded call) he said something about a payments being made in 2012.  When I asked what bank the payments were drawn on, he couldn't give me any specific information; just gave me the name of the bank that I had used in 2010.  I told him that was impossible as I hadn't had accounts at that bank since 2010. I've since, gone to that bank and had a letter typed and notarized by the bank supporting my claim that all of my accounts were closed in 2010.  I was also told a larger payment close to $450+ was made at the end of 2012. One month before the debt was sold off. None of it makes any sense. If in fact a large payment was made (and by large, the debt was only a few hundred dollars and my credit limit at the time was $500, so $450 is a large percentage) the original creditor would have had no reason to sell off the debt and they were recouping money.  Furthermore you can track the ever increasing balance. No credits were ever recorded against the balance which would have been indicative of a payment.  My credit report never shows any return to up to date payment status or a decreasing days paid late.  In addition, with fees and interest I was almost $900+ over my credit limit, yet the plaintiff asserts that I continued to make purchases. 

They say all of this but have provided nothing to substantiate any of their claims.

Link to comment
Share on other sites

26 minutes ago, alb said:

I do believe they fabricate payments.  When I spoke to the original creditor a few weeks ago (before I recorded call) he said something about a payments being made in 2012.  When I asked what bank the payments were drawn on, he couldn't give me any specific information; just gave me the name of the bank that I had used in 2010. 

It's also possible that someone else's payment(s) were credited to your account by mistake.  That has been known to happen.  

Have you checked the bank records from the bank you had in 2012? 

Link to comment
Share on other sites

On ‎11‎/‎21‎/‎2017 at 12:15 PM, Goody_Ouchless said:

First, let me apologize - I started responding without reading first post in detail, so my responses were nonsensical.

Let' start over:

1) If facts are as you described, then the only logical course of action is to get a lawyer to file and FDCPA claim on contingency. As you correctly stated, trying to overturn judgment based on an affirmative defense that was never asserted would appear to be an uphill climb.

2) Given your situation between 2010 - 2015, which I assume led to your needing co-signers for current credit - is it at all possible that this judgement is not for the Barclay's account that defaulted in 2010? Could plaintiff's lawyer have given you OC's name in error? Could you have had two Barclay's cards, or could this firm have your Barclay's account on file and given it to you by mistake, when, for example, the 2017 judgement is for an XYZ Credit Card?

 

These are all great questions. You are correct in your above statement that the court / Midland wont care about my life situation. I only bring that up because it is the reason I don't question my certainty as it pertains to the SOL. Its how I know there couldn't be anyone coming after me that would be within the SOL. And unfortunately it is also the reason that I failed to give any merit to their summons.  It took me a lot of searching to figure out what card the Barclay Card was. I was given the original credit card number over the phone by an operator at the Atty for plaintiff office. I had to pull up credit report find the bank listing and match cc number.  Even then I had no idea what it was.  When I called OC they had to run through a list of branded cards. Even then I didn't remember.  I dug through a lot of old papers and finally found some old statements and matched the numbers.

 

This is a major uphill battle. But I do believe this happens a lot. I don't believe Midland is making mistakes.  I believe they know exactly what they are doing.  And they are doing it in such volume and in such a premeditated way (just like other debt collectors) that our federal government had to establish the FDCPA and theoretical financial penalties (damages) which would deter them from taking such action in the first place.  I don't think they care about their reputation.  If you're large enough and powerful enough it doesn't matter if people think you do business ethically (not my opinion but I am a realist).  But if you really think about it, this is very clear:  You have a business, such as Midland Funding which buys an old debt for 10-25 cents on the dollar. Then adds fees and interest.  And then tries to collect on that amount.  If they do, they profit.  If they don't and they have to write it off, they profit in a tax write off which offsets their tax obligation.  If they purchased my old debt  for approx. $185  and now they are recouping $2000+, that's a pretty profitable business model. It's akin to a ponze scheme.  There's no real purchase or goods associated with the money a debt purchasing company is going after. My guess is their operational expenses are fairly low. Their legal fees are probably miniscule as they don't do much research into the validity of accounts (why would they, it would cut into profits) and they don't need to, as mathematically it doesn't add up for a defendant to hire an attorney and have the attorney cost them more than what they are being sued for.  And to fight it prose is just as expensive in terms of time away from work, and maybe even more costly in terms of the hardship it causes.  And Midland knows this.

Just my opinion

 

 

Link to comment
Share on other sites

15 minutes ago, BV80 said:

It's also possible that someone else's payment(s) were credited to your account by mistake.  That has been known to happen. 

Have you checked the bank records from the bank you had in 2012? 

LOL I wish. :)

No because the balance never changed to indicate there were actually any payments applied.  It continued to go up by the amount of late fees and finance charges. I didn't have a bank account in 2012, really the situation was dire.

When I inquired more about the payments they said they couldn't give me any of that information.  I do have one theory but I would need all of the statements; and even then it would just be so unscrupulous.

 

Link to comment
Share on other sites

13 hours ago, alb said:

LOL I wish. :)

No because the balance never changed to indicate there were actually any payments applied.  It continued to go up by the amount of late fees and finance charges. I didn't have a bank account in 2012, really the situation was dire.

When I inquired more about the payments they said they couldn't give me any of that information.  I do have one theory but I would need all of the statements; and even then it would just be so unscrupulous.

 

Okay, but don't jump to conclusions.    Yes, a payment could have been fabricated but the fact that a rep for the OC saw a payment in 2012 also shows that something wonky was on the OC's system.  That could not have been done by the JDB.

Unless I missed it, did you state the date the complaint was filed with the court?

Link to comment
Share on other sites

BV - OP stated that case is from April of this year, so there is still time for FDCPA claim.

Alb - While I understand your feeling about Midland, I think it is clouding your judgement (no pun intended.) The analogy I use is that of Las Vegas - there was time when things were crooked, but now there is simply too much money being made on the straight-and-narrow to risk it through fraud on a case-by-case basis. Unless I missed something again, you have talked to everyone except Midland. I would really call them and explain situation and see if someone there - with access to all of the records they used to decide to sue - can make sense of the situation. If they compare your story - which is compelling since you have done your homework with your banks - with their documentation, this should be resolved. Either they will see mistake and rescind judgement (at which point I would still sue), provide a missing piece of evidence that you may have missed, or they will admit they have nothing and STILL won't rectify situation, in which case you bring it all to a lawyer. The FDCPA claim is your way out - if there's not a smoking gun somewhere.

 

Link to comment
Share on other sites

I'll try to stay out of your new thread, as it's clear you are intent on a Quixotic mission to solve this your own way. But, I can't help but ask if there is more to the story? Everything you have provided shows this to be a textbook case for a lawyer to handle on contingency with the outcome being removal of judgement and a $1000 check in your pocket - all with little-to-no effort on your part.

What are we missing?

Link to comment
Share on other sites

On ‎12‎/‎1‎/‎2017 at 11:41 AM, Goody_Ouchless said:

I'll try to stay out of your new thread, as it's clear you are intent on a Quixotic mission to solve this your own way. But, I can't help but ask if there is more to the story? Everything you have provided shows this to be a textbook case for a lawyer to handle on contingency with the outcome being removal of judgement and a $1000 check in your pocket - all with little-to-no effort on your part.

What are we missing?

I think the case is cut and dry. That is what baffles me. And I think that is what confuses everyone else.  I believe people are thinking there must be something more to this;

it can't be this easy.  I'm thinking the same. I do think Midland Funding is slime, that aside, I'm not sitting here pretending the debt isn't mine.  I'm not arguing all of these bs technicalities that just end up being stall tactics.    But I am also simultaneously fighting a garnishment order for this judgment.   The reality is, I can not afford to hire an attorney at any cost.  And while people always say there are attorneys who will take cases on contingency; I can't find one. I've reached out to numerous attorney's offices in Utah for even just a consult and I can't even get a return phone call.  It's not that I wouldn't like representation, it's that I can't find any, not on contingency.

Link to comment
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.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.