Mloske

Help needed ASAP!! Midland lawsuit Ohio

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I was served a Summons from Midland Funding in December. I replied back with a motion for a more definitive statement. The magistrate denied my motion. Now I have less then 14 days to object. The attorney sent me a “bill of sale” out of good faith per attorney.. The documents  look sketchy and lack any professionalism . What do I file now? Should I motion for arbitration, or Motion for Leave to Respond to Plaintiff’s Complaint.?

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I would file objections within the 14 days.  If you don't, the magistrate's decision becomes final and you lose appeal rights as to that decision.  If the magistrate's decision is upheld by the judge, then I would file an answer, which should include the affirmative defense of lack of jurisdiction due to the arbitration clause, and file the MTC Arb.  Arbitration works very well against JDBs.

Filing the objections should buy some more time too. 

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1 hour ago, Mloske said:

How do I write an objection?

@Mloske Here's some info:

http://smallclaims.fcmcclerk.com/home/court-forms/objection-to-magistrate-s-decision

 http://www.cornwell-law.com/04/objections-to-magistrates-decisions/

 

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Thank you so much for your help! I’m still confused on what to say in the objection. What do I need to prove to the court in my objection? I was able to find forms to fill in, but I couldn’t find examples to guide me on how to present it.  I am attaching my motion for definitive statement that was denied and Midlands response .

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@Mloske

Did they attach a copy of the last statement to the complaint?  If so, why did you claim they didn't attach a copy of the account?

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It was a copy of a cc card statement. I went on LawHelp Interactive, completed the interview, they asked about the cc bill and so forth ,  then provided me with this document. I actually got served twice in 2 weeks from the same law firm , (different attorney for each) who is representing Midland, both complaints are comenity bank cc. So I am fighting both at the same time! 

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From the Magistrate's Decision:

"In the case at bar, the statement of account activity attached to plaintiff's complaint included an easily identifiable account number, a due date, interest rate, the defendant's name and address, and reflect specific debits and credits on the account. Plaintiff's statement of account and complaint both list the identical amount outstanding. Thus, plaintiff's claim provides an adequate basis upon which defendant can frame a response. . . .Defendant further claims that Civ. R. 17 requires plaintiff to attach to the complaint proof of its ownership of the debt. Civ. R. 10(D) is the standard used to ascertain if plaintiff has demonstrated ownership. . . .While it is necessary for an assignee to prove he is the party in interest to prevail on a claim,  Civ. R. 10(D) does not require this proof of assignment to be attached to the complaint. Hudson & Keyse, LLC v Carson, 10th Dist. No. 07AP-936. 2008-Ohio-2570."

@Mloske What arguments can you mount against the bolded findings above?

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@Brotherskeeper,  is it game over? The only document I had with the complaint was a copy of CC statement, I had no proof that Jdb had ownership of my account, when I filed my motion. I received the Magistrates decision and the documents from Midland the same day. Is their proof of ownership (bill of sale, etc) enough to prove standing?  I am so overwhelmed, I have researched and researched and now I have no idea! I thought I would get a chance to answer?

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4 minutes ago, Mloske said:

@Brotherskeeper,  is it game over? The only document I had with the complaint was a copy of CC statement, I had no proof that Jdb had ownership of my account, when I filed my motion. I received the Magistrates decision and the documents from Midland the same day. Is their proof of ownership (bill of sale, etc) enough to prove standing?  I am so overwhelmed, I have researched and researched and now I have no idea! I thought I would get a chance to answer?

The decision by the Magistrate contains case law that shows that proof of ownership does not have to be attached to the complaint.   If the credit card agreement contains an arbitration provision, you might want to look into that option.

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

https://www.creditinfocenter.com/community/topic/329407-arbitration-in-the-modern-era/

 

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@Mloske  As I said to another Ohioan,  in yrs past we had some success with a Motion for a More Definite Statement, but not so much now.  Arbitration is way to go if your card agreement allows for it.

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@BV80  I do have an arbitration clause. Per the magistrates decision , it states I need to file an objection.  That’s where I’m hung up. What do I need to file?! The website that helped me with first motion , suggested  I respond with a motion to leave .. 

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@Mloske

 In my opinion, that website was wrong in suggesting that you file a motion for a more definite statement.

 In regard to the defenses that website has suggested, were you only an authorized user on the account? 

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@Mloske It appears (I am not a lawyer--IANAL) that you have 14 days from notice of the court's action to file an answer. If I were in your shoes, I'd find out from the court if that 14-day clock starts with the magistrate's decision or the judge's ruling.  IANAL Arbitration as an affirmative defense may be asserted in your answer, followed by a motion to compel arbitration. I don't know if your rules permit you to motion to compel arbitration in lieu of filing an answer, after having filed a motion for a more definitive statement that was denied. No, it is not game over! 

 See Responding to a Complaint: Ohio: http://www.dinsmore.com/content/uploads/2017/06/responding20to20a20complaint20ohio203-578-2986.pdf

"If the court denies the motion for a definite statement, the defendant(s) have 14 days to file an answer or such other time as the Court may affix. If the order is not obeyed, the statement may be stricken. (Ohio Civ. R. 12(A).)"  

RULE 12. Defenses and Objections--When and How Presented--by Pleading or Motion--Motion for Judgment on the Pleadings

(A) When answer presented.

(1) Generally. The defendant shall serve his answer within twenty-eight days after service of the summons and complaint upon him; if service of notice has been made by publication, he shall serve his answer within twenty-eight days after the completion of service by publication.

***(2) Other responses and motions. A party served with a pleading stating a crossclaim against him shall serve an answer thereto within twenty-eight days after the service upon him. The plaintiff shall serve his reply to a counterclaim in the answer within twenty-eight days after service of the answer or, if a reply is ordered by the court, within twenty-eight days after service of the order, unless the order otherwise directs. The service of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (a) if the court denies the motion, a responsive pleading, delayed because of service of the motion, shall be served within fourteen days after notice of the court's action; (b) if the court grants a motion, a responsive pleading, delayed because of service of the motion, shall be served within fourteen days after service of the pleading which complies with the court's order.

(B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.

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3 hours ago, Mloske said:

I had no proof that Jdb had ownership of my account, when I filed my motion.

As @Brotherskeeper said in his answer the Magistrate explained in their ruling why that was not attached to the complaint.  OH law does not require it be attached to the complaint. If you want that evidence then you would have to do discovery according to the rules of civil procedure for the court.

3 hours ago, Mloske said:

Is their proof of ownership (bill of sale, etc) enough to prove standing?

Under the Business Records rules of the court in most states:  Yes.  They have enough to prove their case.  The days of a JDB wandering into court and simply stating "he/she owes us money" with no documents are OVER.  

I would seriously look into the arbitration route.  You would need to raise that as an affirmative defense in your answer to preserve this though.  Some states have laws on the books that state if you engage int he litigation process you waive your right to arbitration.  In Texas you have to list it as an affirmative defense or you waive it.  In FL you have to file a motion to compel arbitration in lieu of an answer or you waive it simply by answering the suit.  Find out what OH requires.

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17 minutes ago, Mloske said:

Thank you so much for everyone’s input! I appreciate it! I am going to start working on the arbitration route! 

@Mloske Here's some Ohio-specific info:  https://www.jacksonlewis.com/sites/default/files/docs/Compelling and Staying Arbitration in Ohio.pdf

Please answer BV's question:

3 hours ago, BV80 said:

In regard to the defenses that website has suggested, were you only an authorized user on the account? 

 

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1 hour ago, Mloske said:

@BV80 yes 

Who opened the account?  Was it your spouse?

If that's the case, and if OH is  community property state, you might be liable for the debt even though were you only an authorized user.   But I could be wrong.  You need to find this out.

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In response to some of the comments above:

Ohio is not a community property state.

The 14 days in which to file objections starts with the issuance of the magistrate's decision.  The magistrate's decision is a preliminary decision, and has to be approved by the actual judge to be final (at least with regard to the motion for a more definite statement).  If you think filing objections is a losing battle, then don't file them.   Not filing them won't hurt you if it's a losing battle, and no, it's not game over.  If there is any doubt when the 14-day clock starts within which you need to file an answer to the complaint (14 days after the magistrate's decision or 14 days after the judge adopts the magistrate's decision), then do it earlier.

You do need to file an answer, with an affirmative defense of lack of jurisdiction due to the arbitration clause, and a Motion to Compel Arbitration. Arbitration is the best way to beat JDBs.

Filing an answer in Ohio does not waive your arbitration rights.  Going farther, such as engaging in discovery, will do that.  See Land v Byrider:  https://law.justia.com/cases/ohio/twelfth-district-court-of-appeals/2007/2007-ohio-1222.html

 

 

 

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