Midland Funding suit in Texas

[cshot37]

Just a quick background on a case.  My wife was sued by Midland just prior to Christmas.  Scott and a$$.  are the opposing attorneys.

We filed our answer and got approval for Discovery and sent in a modified for us version of @texasrocker Request for admissions, interrogatories, and production.  Unfortunately our court date was 25 days after they received the approved Discovery Request, and the JP allowed for a continuance for Midland to answer Discovery postponing the inevitable by another 30 days.  The next court date is March 15, 2018.

I am looking for input on a couple of motions that we want to file  the first is a Motion to Exclude Evidence since the time allowed by TRCP (Texas Rules of Civil Procedures) for Discovery have now passed and the other is a Motion for Summary Judgement and Dismissal.

 

Please critique as necessary.  Thanks

 

 

MOTION TO EXCLUDE EVIDENCE

 

Facts:

Defendant was approved Discovery by the court

Discovery was sent to the Plaintiff on January 19, 2018 by USPS Certified Mail and was signed for by Plaintiff on February 22, 2018 (this is according to the USPS as Plaintiff did not date Return Receipt)

In accordance with TRCP Rules 197, 198, 196 Plaintiff must fully answer in writing each of the interrogatories within 30 days of service, Plaintiff must admit or deny each request for admission in writing within 30 days of service and that within 30 days after service of Requests for Production, Plaintiff must serve a written response to the Defendant including items requested or stating with respect to each request that an inspection and copying or reproduction will be permitted as requested.

Plaintiff has not responded to any Discovery request and at a Hearing on February 15, 2018 Plaintiff denied having ever received Discovery.

Defendant produced at the above hearing a copy of the Discovery that was sent to Plaintiff on January 19, 2018 that was signed for by Plaintiff on February 22, 2018.  Plaintiff committed perjury in open court by denying that Discovery had ever received.

TRCP Rule 198.2 (c) Effect of failure to respond states: If a response is not timely served, the request is considered admitted without the necessity of a court order.  Due to this and Plaintiff not responding to any request the following should be considered ADMITTED TO BY PLAINTIFF:

1.       Plaintiff admits that it did not provide any goods or services to the Defendant

2.       Plaintiff admits that it is not the Original Creditor on the account at issue

3.       Plaintiff admits that it did not enter into any contract with Defendant

4.       Plaintiff admits that it obtained its rights to the account at issue through an assignment

5.       Plaintiff admits that the account that is subject of this lawsuit is governed by a written contract between the Original Creditor and Defendant

6.       Plaintiff admits that the terms and conditions for the account that is the subject of this lawsuit are set forth in a card member agreement

7.       Plaintiff admits that no employee, agent, or representative of Plaintiff is a custodian of records for the Original Creditor on the account at issue in this lawsuit

8.       Plaintiff admits that no employee, agent or representative of Plaintiff has personal knowledge of Original Creditor’s record keeping of any records pertaining to the Defendant

9.       Plaintiff admits that the Original Creditor sold or assigned the debt with a Disclaimer of Warranty

10.   Plaintiff admits that it did not review the Original Creditor’s business records associated with this account prior to Plaintiffs decision to purchase the account.

 

Plaintiff, by not answering any Interrogatories, Requests for Production, Requests for Admission, and Additional Request for Disclosure places Plaintiff in Violation of multiple TRCP Rules.  Plaintiff is showing a blatant disregard for the Texas Rules for Civil Procedures and is in Violation of an Order from this Honorable Court.

Plaintiff, by not answering Request for Admissions, admits that no employee, agent, or representative is a custodian of records for the Original Creditor and that no employee, agent, or representative has personal knowledge of the Original Creditor’s record keeping.  These admissions, albeit by default, voids the affidavit of Dalaney Young making it invalid as it contains hearsay evidence that cannot be validated.

Prayer

Defendant prays that this Honorable Court will exclude all evidence submitted by Plaintiff and hold Plaintiff in Contempt for Violations of TRCP Rules and an Order by this Honorable Court.

 

and 

 

MOTION FOR SUMMARY JUDGEMENT

 

Defendant, XXXXXXXXXXX, respectfully requests Dismissal With Prejudice, as follows:

I.             BACKGROUND

Pending is a Motion for Summary Judgment. Plaintiff has proposed to file Affidavits in support in support of their claim and defendant respectfully objects to and shows that the motion for summary judgment must be approved. The hearing on this matter is an evidentiary one. The document identified as an “Affidavit” is not in proper form and does not constitute an Affidavit by law. The facts of the case are simple. Plaintiff claims that it is the assignee of an alleged debt incurred by plaintiff. Further, plaintiff claims that defendant owes it some $1,961, or more. Defendant denies these allegations. This case involves serious issues concerning plaintiff’s litigation practices and debt buying and collection practices, as discussed herein.

II.            THERE IS NO EVIDENCE OF AN ASSIGNMENT AND THE ALLEGED AFFIDAVITS ARE OBJECTED TO AND ARE SHAM FILINGS

[a]          THERE IS NO PROOF OF AN ASSIGNMENT OR STANDING

There is no proof of any assignment. Plaintiff filed suit against Defendant claiming that Plaintiff was the owner of all rights, title and interest in a receivable issued through Synchrony Bank. Defendant denied Plaintiff’s requests for admissions. Plaintiff claimed that Defendant is indebted to Plaintiff, which is denied. Plaintiff then claimed that Defendant owed monies on a Synchrony Bank, account which is denied. Defendant challenges the right and standing of plaintiff to bring any claim against. Plaintiff has failed and continues to fail to produce a single item of admissible proof of any assignment or ownership of any alleged debt.

Plaintiff lacks procedural capacity and standing to file suit for anyone else.

The law does not vary state-to-state. “The party asserting that a debt is due to it by virtue of an assignment must prove that the debt was in fact assigned to it. Ceramic Tile Intern., Inc. v. Balusek, 137 S.W.3d 722, 724 [Tex. App. - San Antonio 2004, no pet.]; Delaney v. Davis, 81 S.W.3d 445, 448-49 [Tex. App. - Houston [14th Dist.] 2002, no pet.]. In Ceramic Tile, the Court of Appeals reversed a trial court's judgment favoring an assignee who never introduced the assignment into evidence at the trial. See 137 S.W.3d at 725. Although the assignee attached a copy of the assignment to its pleadings, the appellate court held that the assignee's failure to place the assignment into evidence during trial precluded it from recovering on its claim. Id. Several appellate courts have relied on the same principle requiring creditors to prove their assignees' rights at trial and, where the evidence failed to show the assignments, similarly denied their recoveries. See Powell v. McCauley, 126 S.W.3d 158, 163 [Tex. App. - Houston [1st Dist.] 2002, no pet.]; American Fire & Indem. Co. v. Jones, 828 S.W.2d 767, 769 [Tex. App. -Texarkana 1992, writ denied]; Pape Equipment Co. v. I.C.S., Inc., 737 S.W.2d 397, 399 [Tex. App. - Houston [14th Dist.] 1987, writ ref'd n.r.e.]; see also Esco Elevators, Inc. v. Brown Rental Equipment Co., Inc., 670 S.W.2d 761, 764 [Tex. App. - Fort Worth 1984, writ ref'd n.r.e.]; Briscoe v. Texas General Ins. Agency, 60 S.W.2d 814, 815 [Tex. Civ. App. - Amarillo 1933, no writ]; Indemnity Ins. Co. of North America v. Garsee, 54 S.W.2d 817, 820 [Tex. Civ. App. - Beaumont 1932, no writ].” Skipper v. Chase Manhattan Bank USA, N.A., Not Reported in S.W.3d, 2006 WestLaw 668581 [Tex. App.-Beaumont 2006].

Perhaps the best and most colorful discussion of Midland Funding’s inability to prove standing and assignment is in Midland Funding LLC v. Loreto, 34 Misc.3d 1232[A], 950 N.Y.S.2d 492 [Table] [N.Y. City Civ. Ct. February 23, 2012], where the court held: “A. Is there any proof of the underlying assignment? The complaint alleges the underlying consumer credit account was sold by Citibank to Midland Funding LLC. Attached as an exhibit to the motion is a “Bill of Sale and Assignment” from Citibank [South Dakota], NA and an “Asset Schedule” alleging that this account was one of many included in a Bill of Sale and Assignment dated August 20, 2010 and packaged with an undisclosed number of other accounts in a Purchase and Sale Agreement between Buyer and Bank with the date “ redacted ” [emphasis in original]. Likewise the “Asset Schedule” states: “The individual Accounts transferred are described in the final electronic file delivered by the Bank to Buyer on or around August 18, 2010 the same deemed attached here to by reference.” The remainder of this document is also “redacted ” [emphasis in original]. Neither document contains any reference to this specific account nor discloses how many “accounts” were included in the transfer. Neither exhibit discloses the amount of consideration, if any, tendered by Midland to Citibank. This confirms that plaintiff has adopted “Guys & Dolls” character Big Jule's “spotless dice” logic to consumer credit transactions. FN 1. [[FN1. “Guys and Dolls” is a musical by Frank Loesser based on stories of Damon Runyon.]] Additionally the Bill of Sale and Assignment refers to “the terms and conditions of a Purchase and Sale Agreement” which is not included as an exhibit in this litigation and may set forth rights and defenses available to defendant herein. The court must question why it has been omitted. Submission of a document in this form absent even a modicum of proof that the defendant's account was included in the transaction.  Neither the Bill of Sale and Assignment nor the Asset Schedule specifically refer to the defendant's account. Further, there is no affidavit from someone with personal knowledge of the account to verify as to the accuracy of this information. The document is merely signed by a supposed employee of Synchrony Bank. There is no indication that Midland Funding LLC accepted the assignment. The documentation is legally insufficient to establish the proper assignment of the account and cannot be the basis of a judgment whether on default, by motion, inquest or trial.

          THE AFFIDAVITS PRESENTED BY MIDLAND FUNDING ARE OBJECTED TO AS HEARSAY, LACKING FOUNDATION, NOT MADE ON PERSONAL KNOWLEDGE AND NOT IN PROPER FORM AND ARE PART OF A CONTINUING SHAM THAT MIDLAND FUNDING HAS CONTRIVED

Plaintiff now seeks to admit into evidence the so-called “Affidavit” of Dalaney Young, a supposed employee of Midland Credit Management.  This purported affidavit is hearsay, lack foundation and are deceptive writings by plaintiff through plaintiff’s legal department and outside counsel’s paralegals. Neither purported affidavit is in proper form or content. Both are pro forma, as previously used by this entity and its “sister” debt buyer/debt collection entities. The Plaintiff and the purported affiants have no standing or foundation to testify to the accuracy of any such information. Worse yet, MIDLAND CREDIT MANAGEMENT, INC., did not create the information at issue. MIDLAND CREDIT MANAGEMENT, INC., is not Synchrony Bank. MIDLAND CREDIT MANAGEMENT, INC., is a third party debt collector, as is Encore Capital and as is Midland Funding.

Is the Dalaney Young statement a “robo” document? Owing to Midland Funding, LLC having been found by a federal court in Ohio [ Brent v. Midland Funding, LLC, 2011 WestLaw 3862363 [ND Ohio]; 644 F.Supp.2d 961 [2009]] to have engaged in the practice of “robo-signing” of documents in violation of the federal Fair Debt Collection Practices Act [FDCPA] [15 USCA §1692 et seq] and the Ohio Consumer Sales Practice Act [OCSPA] [Ohio Rev.Code Ann. §1345 et seq], this court is compelled to review plaintiff's documents to see if robo-signing has occurred. This was also necessitated by the fact that the court in Brent found the robo-signing was being done by “specialists” in Midland Funding's litigation support department and Dalaney Young is designated as a “Legal Specialist' for MCM. The Dalaney Young statement consists of three pages. The first page contains two numbered paragraphs. The second page contains five numbered paragraphs. Page three contains the certification statement, Dalaney Young' signature, and the acknowledgment. The acknowledgment has all items typed except the date; which is entered by a stamp. This indicates that Ms. Dalaney Young must be executing similar certifications which only need a date entered. The bottom of each page has a straight line beneath which it identifies the document as an “Affidavit of Dalaney Young” followed by a page number. Below that, is what appears to be a bar code with the MCM account number, a bar code with an “AFFCOTMEDIA”, and a third bar code with a number for unknown reasons. What also makes the court question the independent basis of the submission is the fact that all the dates are presented numerically as the year, the month and the day, i.e. the date the account opened is “2000–03–17.” This is not a usual way to present this information in American business transactions and in common, everyday practice and, according to some sources, is the standard way of calendar dating in Asian countries, Hungary, Sweden and the U.S. armed forces. It appears to be something either generated by a computer program or prepared overseas rather than dates put in an affidavit by an individual reviewing a file in St. Cloud, Minnesota. The court cannot conclude at this time, that this is a “robo” document. But the above items will require that inquiry be made in that regard at the time of trial and for plaintiff to establish its proper preparation. [emphasis added, in part.].”  These “robo-signed” affidavits have been subject to punishment by the Attorney General in Minnesota (Where the documents are “created”) and Texas (where this case is being brought forth), and many other states as well.  Midland has also agreed to a Consent Order from the Consumer Financial Protection Bureau, where they were fined again for using these “robo-signed” affidavits and for submitting them illegally to multiple courts throughout the country.

 

Plaintiff has been completely evasive and failed to produce information or documents necessary to evaluate the motion, for example, any purported assignment needed to show standing, the actual cardholder agreement, answer any interrogatories or admissions or provide source documentation concerning the payments and plaintiff’s disputes.

Alarming is plaintiff’s use of false so-called “affidavits” and documents in other cases. In Midland Funding LLC v. Brent, 644 F.Supp.2d 961 [U.S.D.C. N.D. Ohio 2009], the Federal District Court addressed a Midland Funding “Legal Specialist”/ paralegal/ legal liaison’s statement that was offered into evidence, absent proper objections, and the court explored the assertions in that affidavit and found: “In finding assertions in the affidavit to be false and misleading, this Court is not concluding that all the information in the affidavit is incorrect. Brent has provided no evidence that the amount of the debt, the fact that it is unpaid, or other vital account information, is false. As discussed infra, the actual account information is probably either correct or likely thought correct in good faith by Midland and MCM [and likely a bona fide error if so]. However, this Court finds that the affidavit as a whole is both false and misleading for the aforementioned reasons and notwithstanding the fact that some of the data in it are correct. It is unclear to this Court why such a patently false affidavit would be the standard form used at a business that specialized in the legal ramifications of debt collection. Midland, MCM, or JBR could easily prepare a form affidavit that achieved the same goals without being misleading by reflecting the truth, plain and simple. Rather than basing the affidavit on false personal knowledge, they could base it on the accuracy of the records kept and the accuracy of the data. [emphasis added.].” This Honorable Court might take note that, just as in Brent, supra, and Bertram, supra, and Cooper, supra, Midland Funding claimed to be the owner of the account rights yet “[A]fter MCM purchased the debt, MCM employed Midland to pursue collection of the amount owed on the card.” It appears that Midland Credit Management, Inc. [“MCM”], is purchasing debts yet “Midland Funding, LLC” is filing suits in its name, possibly, to try to allow MCM, as the capitalized entity, to avoid exposure for FDCPA, 15 U.S.C. 1692, et, seq,, FCRA, 15 U.S.C. 1681, et. seq., et al, damage claims and class action claims.

Of course, Midland has not cured its deceptive practices. Consider the State of Minnesota v Midland Funding and State of Texas v. Midland Funding.  In both cases from 2011, Midland Funding and its sister companies agreed to no longer use “robo-signed” affidavits.  Of course this did not make Midland Funding change its ways.  In 2015 Midland Funding was issued a Consent Order from the Consumer Financial Protection Bureau, in which the CFPB found:

 

62. Encore has routinely submitted business records affidavits in which affiants

swear that attached documentation relates to individual Consumers' accounts.

63. However, in many instances, the attached documentation, which sometimes included generic credit card agreements created years after the Consumer purportedly

defaulted on the agreement, does not in fact relate to the Consumer being sued.

64. Finally, in numerous instances from at least 2009 to 2011, Encore

submitted affidavits in which affiants misrepresented that they had personal knowledge

of facts contained in affidavits, including that the Consumer owed a Debt. 

And:

86. In numerous instances, in connection with collecting or attempting to

collect Debt from Consumers, in affidavits filed in courts across the country, Encore

represented directly or indirectly, expressly or by implication, that:

a. Debts not disputed pursuant to Section 809(a)(3) of the FDCPA are

presumed valid by a court;

b. Encore affiants had reviewed account-level documentation from the original

Creditor corroborating the Consumer's Debt;

c. Debt seller affiants had reviewed hard copy records corroborating the

Consumer's Debt;

d. Documents attached to affidavits were specific to the Consumer; or

e. Encore affiants had personal knowledge of the individual Consumer's

indebtedness.

87. In truth and in fact:

a. Debts not disputed pursuant to Section 809(a)(3) of the FDCPA are not

presumed valid by a court, because pursuant to Section 809(c) of the FDCPA, "[t]he failure of a consumer to dispute the validity of a debt [after

receiving a notice under Section 809] may not be construed by any court as

an admission of liability by the consumer";

b. In numerous instances, Encore affiants had not reviewed account-level

documentation from the original Creditor corroborating the Consumer's

Debt;

c. In numerous instances, Debt seller affiants had not reviewed hard copy

records corroborating the Consumer's Debt;

d. In numerous instances, documentation attached to affidavits was not

specific to the Consumer; and

e. In numerous instances, Encore affiants did not have personal knowledge of

the individual Consumer defendant's indebtedness.

88. These representations are material because they are likely to affect a

Consumer's choice or conduct regarding how to respond to a lawsuit and are likely to

mislead Consumers acting reasonably under the circumstances.

89. The representations set forth in Paragraph 86 are false or misleading and

constitute a deceptive act or practice in violation of Sections 1031(a) and 1036(a) of the

CFPA, 12 U.S.C. §§ 5531(a) and 5536(a).

Respectfully, Midland Funding has been determined to present false affidavits nationwide in efforts, as a debt buyer, to obtain judgments against consumers where Midland was not entitled to do so. Also see Vassalle v. Midland Funding LLC, Slip Copy, 2012 WestLaw 4888319 [U.S.D.C. N.D. Ohio July 5, 2012]. This is a nationwide practice, not just local to our small part of Texas.

Midland Credit Management is not a “Servicer” of any account. It is a debt buyer and debt collector. It does nothing to generate, maintain or have any first hand transactions or experiences with any account in usage. Ms. Young has no “personal knowledge of those account records...” par. 1, statement of Young. Note that other purported affiants in the other aforementioned cases made the same false assertions and those affidavit were uniformly rejected. Midland created no business records relative to the subject account.

From the inception, Defendant disputed and contested Plaintiff’s claim. Defendant will testify in opposition to the motion for summary judgment that he is not indebted to plaintiff on said account. Plaintiff will be unable to provide any evidence of such an indebtedness or account or assignment.

CONCLUSION

Defendant’s motion for summary judgment must be approved.

[texasrocker]

Instead of this send a letter via certified mail to the plaintiff's attorney stating that if answers to your discovery are not received within seven days then you intend to file a motion to compel the answers and the complete forward flow agreement. 

If they still fail to answer or answer with objections then you can use some of the material that you have presented here in a motion to compel.  That will be much more effective.

 

[cshot37]

Well, Midland's attorneys sent out their answer to my Discovery (it is dated 2 days past the time limit allowed by TRCP but I don't think a JP will care about that).

I love the fact that in their admissions they object to admitting entering into a contract and state that since they did not bring suit on a breach of contract it is irrelevant, but later in the interrogatories state that "The only issue before the Court are Defendant's breach and the economic which flow therefrom."  So what is it? A breach? If so a breach of what?

Also, they object to the words "any" and "all" as being to vague even when the questions that these words are attached to clearly spells out what is being requested.

My Question for this forum, and maybe @texasrocker will chime in again, is how do I go about forcing them to answer at least some of these questions?

I know that some of it is privileged information and that I shouldn't expect an answer of any kind and that their objections are probably valid, but I cannot believe that they say an employee of Midland has personal knowledge of how Synchrony keeps it's records.  I also think that an answer to the following should be provided by Midland or its attorneys:

Request for Production #9, #10, #11, #14

Interrogatory #6, #7, #10, #11, #13, #14

Request for Disclosure C, D, F

These items are relevant to the case as they should prove the business records (by stating what they Midland looked at, and verifying the names, workplaces, and affidavit backgrounds of those submitting business record affidavits.

So, how do I go about forcing Midland to provide a response to this since all they provided was pretty much a blanket statement of "we object because the use of any and all is to vague"

 

discovery response.docx

[Goody_Ouchless]

2 hours ago, cshot37 said:

My Question for this forum, and maybe @texasrocker will chime in again, is how do I go about forcing them to answer at least some of these questions?

 

2 hours ago, cshot37 said:

So, how do I go about forcing Midland to provide a response to this since all they provided was pretty much a blanket statement of "we object because the use of any and all is to vague"

You can't. This all makes about as much sense as trying to return a door knob to Home Depot and having the clerk demand the college transcripts of the architect that designed your house.

You got caught up in the whole "Perry Mason" thing of trying to make an extremely simple case WAY more complicated than it is:

You: "I want to know if the affiant took an allergy pill the day he looked at my account!!!"

Judge: "Why don't you just pay your bills?"

 

[cshot37]

I know that Texas Law does allow for me to counter the objections made by Midland.  Such things as identifying the person, workplace, address, and work number of employees that signed affidavits is legal and cannot be objected too.  I believe this takes a court order and I am just wondering how to word my motion

[Clydesmom]

2 hours ago, cshot37 said:

Req uest for Admission No. 4.: through an assignment.

Admit that you obtained your rights to the account at issue

 Response:       Admitted.

This one was a BIG mistake.   Essentially you just admitted they have standing to sue you.

2 hours ago, cshot37 said:

So what is it? A breach? If so a breach of what?

A breach of you/her duty to pay.  

2 hours ago, cshot37 said:

Also, they object to the words "any" and "all" as being to vague even when the questions that these words are attached to clearly spells out what is being requested.

I have to be honest the way you worded it they do appear to be vague but it doesn't even matter because the lawyers DID answer and provided case law to back up their answers.  You are not likely to get a Judge to compel them to answer again.

2 hours ago, cshot37 said:

Request for Production #9, #10, #11, #14

#9 was properly answered in my opinion.  

#10  isn't relevant.  What they relied on when they bought the account has NO affect on suing you now or whether you defaulted.  

#11  isn't relevant either.  Any documents they reviewed in purchasing the agreements have nothing to do with whether you opened an account and defaulted.  If you are asserting their documents are not accurate that burden of proof is on you not them.

#14  Whether they paid consideration for the account is not relevant.  You solved that with the really bad #4 admission that they have standing to sue.  Any consideration paid the OC has zero benefit to you.  Under contract law they can sue for the balance of the account at the time of purchase NOT what they paid for it.

2 hours ago, cshot37 said:

Interrogatory #6, #7, #10, #11, #13, #14

#6  You contend that [insert name of affiant], officer, agent, or representative of [JDB/]plaintiff has personal knowledge of the records keeping systems of the [actual OC] and is qualified to offer testimony as a custodian of records for the original creditor in this case, state the factual and legal basis for your contention.

I would have sent this with my edits in red as opposed to what you sent.  What you did send was WAY too vague.

#7-11 are repetitive, vague and unnecessary. 

8 minutes ago, cshot37 said:

Such things as identifying the person, workplace, address, and work number of employees that signed affidavits is legal and cannot be objected too.

ANY proof of that belief?  I have not heard of that for TX.  That said you could have got that information easily had you worded this ROG this way:

#13  For  [actual affiant name] /affiant whose affidavit is attesting to business records used as evidence in this case, identify the affiant's employer of record and state the total and specific amount of time the affiant spent reviewing records specific to this case and claim.

The number of employees signing affidavits for the company is not relevant to your case.  Only the person who DID sign any affidavit they used in your case is.

#14 is not relevant to your case unless you can prove it.  It is NOT their job to prove it for you.  If you can find case law showing a number of judges in TEXAS have ruled that affiant's records as inaccurate then get it.  Otherwise this is a waste of time.

3 hours ago, cshot37 said:

Request for Disclosure C, D, F

Answered appropriately.  You are NOT going to force any other answer out of them.   NO WAY the court goes for that.  

Here is the reality you are facing.  Under the business records laws they can introduce those documents and affidavits and it will be sufficient.  MOST of @texasrocker discovery is outdated and over kill.  At least 3 previous defendants have been hit with judgments in Texas trying this nonsense.  I looked back through your thread and I don't see where you ever said who the OC was but you would have been better off trying to get this out of court and into arbitration if that was an option.  Now that you have engaged in the litigation process it is too late under TX law to try arbitration, you have waived your right to it by doing so.

1 hour ago, Goody_Ouchless said:

You got caught up in the whole "Perry Mason" thing of trying to make an extremely simple case WAY more complicated than it is:

THIS^^^^^^^^^^^^^^^^

Wasting time demanding things that are privileged like the names of everyone whose account they bought, what they paid for the portfolio or even your account (which doesn't exist as they don't buy them individually) or worse their retainer and fee agreement simply stalled but accomplished little.  Those discovery items worked a decade ago in the paper era when JDBs didn't buy the records to support a case but just a spreadsheet.  In the digital era they get ALL the files and have what they need to easily prove their case.  Unfortunately you relied on outdated discovery and now have to dig out of it.

[cshot37]

1 hour ago, Clydesmom said:

I have to be honest the way you worded it they do appear to be vague but it doesn't even matter because the lawyers DID answer and provided case law to back up their answers.  You are not likely to get a Judge to compel them to answer again.

Please refer to the following with case law to back it up.  Discovery early in a case can be "less precisely drafted" 

 

542                                  BAYLOR LAW REVIEW                         [Vol. 65:2

 

Each production request must specify the items to be produced or inspected individually or by category and, further, describe each item or category with “reasonably particularity.”112 “Reasonable particularity,” however, is not susceptible of a precise definition.113 It depends on whether a reasonable person would know what documents or things are called for by the request.114 The degree of specificity required depends on the requesting party’s knowledge about the documents or things sought as well as the action’s progress when the request is made. Thus, a request served early in an action generally can be less precisely drafted than one served after substantial discovery has been taken.115

 

 

112 TEX. R. CIV. P. 196.1(b) (“The request must specify the items to be produced or inspected,

either by individual item or by category, and describe with reasonable particularity each item and category.”); accord Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989) (orig.  proceeding) (holding that production requests “‘must be specific, . . . and must recite precisely what is wanted’”), disapproved of on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding); In re Belmore, No. 05-04-01035-CV, 2004 Tex. App. LEXIS 8160, at

*12 (Tex. App.—Dallas, Sept. 8, 2004, orig. proceeding) (holding that production requests must describe “with reasonable particularity” each item sought or category); cf. FED. R. CIV. P. 34(b)(1)(A) (“The request[] . . . must describe with reasonable particularity each item or category of items to be inspected.”).

113 Cf. Mallinckrodt Chem. Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 353 (S.D.N.Y. 1973) (“‘[R]easonable particularity’ . . . is not susceptible to exact definition. What is reasonably particular is dependent upon the facts and circumstances in each case.”), quoted with approval in Lopez v. Chertoff, No. CV 07-1566-LEW, 2009 U.S. Dist. LEXIS 50419, at *5 (E.D. Cal. June 2, 2009).

114 Cf. Hager v. Graham, 267 F.R.D. 486, 493 (N.D.W. Va. 2010) (“The test for reasonable particularity is whether the request places the party upon reasonable notice of what is called for and what is not. Therefore, the party requesting the production of documents must  provide sufficient information to enable [the party to whom the request is directed] to identify responsive documents. This test, however, is a matter of degree depending on the circumstances of the case.” (citations omitted) (quoting Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 202 (N.D.W. Va. 2000)) (internal quotation marks omitted)); Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004) (same); St. Paul Reinsurance Co. v. Comm. Fin. Corp., 198 F.R.D. 508, 514 (N.D. Iowa 2000) (same); United States v. Nat’l Steel Corp., 26

F.R.D. 607, 610 (S.D. Tex. 1960) (“The goal [of particularity] is that the description be sufficient to apprise a man of ordinary intelligence which documents are required.”).

115 Cf. Taylor v. Fla. Atl. Univ., 132 F.R.D. 304, 305 (S.D. Fla. 1990) (holding that the categories of documents were set forth “with as much reasonable particularity as can be expected at this stage of discovery”), aff’d sub nom., Taylor v. Popovich, 976 F.2d 743 (11th Cir. 1992).

1 hour ago, Clydesmom said:

#10  isn't relevant.  What they relied on when they bought the account has NO affect on suing you now or whether you defaulted.  

#11  isn't relevant either.  Any documents they reviewed in purchasing the agreements have nothing to do with whether you opened an account and defaulted.  If you are asserting their documents are not accurate that burden of proof is on you not them.

Midland submitted a business records affidavit stating that they relied on the OC's original business records and that they relied on them, therefore this is not vague or irrelevant.  Had midland not relied upon the OC's business records, then I agree it would be irrelevant.

 

1 hour ago, Clydesmom said:

#13  For  [actual affiant name] /affiant whose affidavit is attesting to business records used as evidence in this case, identify the affiant's employer of record and state the total and specific amount of time the affiant spent reviewing records specific to this case and claim.

The number of employees signing affidavits for the company is not relevant to your case.  Only the person who DID sign any affidavit they used in your case is.

I never asked for the number of employees signing affidavits for the company.  I did ask how many affidavits were signed on the same day by the affiant of any affidavit being submitted as a business records affidavit in my case.

[texasrocker]

You did not post the original petition or mention what "evidence" they presented with the lawsuit such as a bill of sale, statements from the OC, or an affidavit from their "custodian of accounts" or whatever they may call it.

These are typical responses from a JDB to evade answering.   Nothing privileged such as names of charged-off account holders was requested and since they did not include a privilege log all of their objections pertaining to privilege are subject to being overruled by the court.  Each and every item is precisely calculated to lead to the discovery of admissible evidence and they always say it is not.   The case law they have referenced in their responses is of little relevance to collection cases or suing on alleged assignments.  One could find just as much case law counteracting any of theirs.

I really need to see the original petition and know what "evidence" they provided to determine if there may be a slam-dunk for a no-evidence motion for summary judgment.  Some of their answers imply that you have already received things from them.

The next step is to send them a letter just as I told you before except instruct them to answer within fifteen days all of the items they objected to, include a privilege log listing any items they consider privileged, and produce the complete forward flow agreement with any other account holders' personal information redacted.     

 

[texasrocker]

6 minutes ago, cshot37 said:

Midland submitted a business records affidavit stating that they relied on the OC's original business records and that they relied on them, therefore this is not vague or irrelevant.  Had midland not relied upon the OC's business records, then I agree it would be irrelevant.

Exactly.  It is actually one of the most relevant things in the whole case.  There is a very good chance that they are eventually going to spring Simien vs. Unfied CCR Partners to enter the OC's business records into evidence.  Here you can show the court that during the time for discovery the plaintiff never produced any documents or provided any answers to interrogatories inquiring about how the plaintiff’s own employees could authenticate or prove up records based upon their supposed “reliance” on the records they supposedly obtained from the original creditor.  The plaintiff is unable to explain how its own employees can prove up the purported business records on which it has based its entire case.

[Clydesmom]

23 minutes ago, cshot37 said:

112 TEX. R. CIV. P. 196.1(b) (“The request must specify the items to be produced or inspected,

either by individual item or by category, and describe with reasonable particularity each item and category.”); accord Loftin v. Martin, 776 S.W.2d 145, 148 (Tex. 1989) (orig.  proceeding) (holding that production requests “‘must be specific, . . . and must recite precisely what is wanted’”), disapproved of on other grounds by Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding); In re Belmore, No. 05-04-01035-CV, 2004 Tex. App. LEXIS 8160, at

*12 (Tex. App.—Dallas, Sept. 8, 2004, orig. proceeding) (holding that production requests must describe “with reasonable particularity” each item sought or category); cf. FED. R. CIV. P. 34(b)(1)(A) (“The request[] . . . must describe with reasonable particularity each item or category of items to be inspected.”).

113 Cf. Mallinckrodt Chem. Works v. Goldman, Sachs & Co., 58 F.R.D. 348, 353 (S.D.N.Y. 1973) (“‘[R]easonable particularity’ . . . is not susceptible to exact definition. What is reasonably particular is dependent upon the facts and circumstances in each case.”), quoted with approval in Lopez v. Chertoff, No. CV 07-1566-LEW, 2009 U.S. Dist. LEXIS 50419, at *5 (E.D. Cal. June 2, 2009).

114 Cf. Hager v. Graham, 267 F.R.D. 486, 493 (N.D.W. Va. 2010) (“The test for reasonable particularity is whether the request places the party upon reasonable notice of what is called for and what is not. Therefore, the party requesting the production of documents must  provide sufficient information to enable [the party to whom the request is directed] to identify responsive documents. This test, however, is a matter of degree depending on the circumstances of the case.” (citations omitted) (quoting Kidwiler v. Progressive Paloverde Ins. Co., 192 F.R.D. 193, 202 (N.D.W. Va. 2000)) (internal quotation marks omitted)); Bruggeman ex rel. Bruggeman v. Blagojevich, 219 F.R.D. 430, 436 (N.D. Ill. 2004) (same); St. Paul Reinsurance Co. v. Comm. Fin. Corp., 198 F.R.D. 508, 514 (N.D. Iowa 2000) (same); United States v. Nat’l Steel Corp., 26

F.R.D. 607, 610 (S.D. Tex. 1960) (“The goal [of particularity] is that the description be sufficient to apprise a man of ordinary intelligence which documents are required.”).

You are in Justice Court.  The 500 rules apply not the Civil Court 100 rules.  Also, they relaxed their evidence requirements a few years back so the JP will decide if they met the threshold on the affidavits regardless of your discovery.

25 minutes ago, cshot37 said:

Midland submitted a business records affidavit stating that they relied on the OC's original business records and that they relied on them, therefore this is not vague or irrelevant.  Had midland not relied upon the OC's business records, then I agree it would be irrelevant.

They relied on them in determining you owed a debt.  I still disagree and believe that wording you used is greatly open to interpretation.

26 minutes ago, cshot37 said:

I never asked for the number of employees signing affidavits for the company.  I did ask how many affidavits were signed on the same day by the affiant of any affidavit being submitted as a business records affidavit in my case.

Had you sent an interrogatory like the one I suggested asking specifically how long YOUR affiant spent on YOUR case then asked that one it would have worked.  You didn't.   How many affidavits were signed by that person that day is not relevant unless you can show that the time spent allegedly on each one was not physically possible.  

You are going to follow this path to your own peril.  Good luck.

[Goody_Ouchless]

So is the allegation that Midland found a bunch of paper with charged off accounts in a dumpster and decided to use that information to sue you? What if the OC can prove that nothing goes in a dumpster without being shredded? Although Midland is sneaky - those "affiants" that lied about reviewing your account were probably taping together shredded documents that day. Do any of the copies show signs of being taped?

 

[cshot37]

33 minutes ago, Clydesmom said:

You are in Justice Court.  The 500 rules apply not the Civil Court 100 rules.  Also, they relaxed their evidence requirements a few years back so the JP will decide if they met the threshold on the affidavits regardless of your discovery.

Yes, I am in Justice Court, but TRCP Rules 196, 197, and 198 deals with Admissions, Interrogatories, and Discovery for all cases and therefor apply to the 500 rules for Justice Court

[cshot37]

45 minutes ago, texasrocker said:

Exactly.  It is actually one of the most relevant things in the whole case.  There is a very good chance that they are eventually going to spring Simien vs. Unfied CCR Partners to enter the OC's business records into evidence.  Here you can show the court that during the time for discovery the plaintiff never produced any documents or provided any answers to interrogatories inquiring about how the plaintiff’s own employees could authenticate or prove up records based upon their supposed “reliance” on the records they supposedly obtained from the original creditor.  The plaintiff is unable to explain how its own employees can prove up the purported business records on which it has based its entire case.

I am not sure how to fight Simien v. Unifund. 

In their admissions when asked "Admit that no employee, agent, or representative of Plaintiff has personal knowledge of Original Creditor's record keeping of any records pertaining to Defendant" the response is DENIED.  I don't know how someone at one company can have personal knowledge of what another company does, but they claim that this is the case.

How can I prove otherwise?

[cshot37]

1 hour ago, texasrocker said:

You did not post the original petition or mention what "evidence" they presented with the lawsuit such as a bill of sale, statements from the OC, or an affidavit from their "custodian of accounts" or whatever they may call it.

I did not post the original petition becasue I was already so far along in the process.  but I have received several copies of these documents as well as a generic card agreement the standard Midland Highly redacted purchase agreement, and about 3 copies of statements that are so small they are almost impossible to read.

sorry for the documents being so strangely spaced out, but that's what happens when you scan something as a PDF then convert it to Word to edit, then copy and paste it to a new document

affidavits.docx

[Goody_Ouchless]

1 hour ago, cshot37 said:

I don't know how someone at one company can have personal knowledge of what another company does, but they claim that this is the case.

How can I prove otherwise?

You can't because you are splitting hairs and the court can see that from a mile away. Understand that the judge isn't forced to check his common sense at the court house door.

Midland's entire business is based on the adoption of business records from other entities. It's not like they bought the rights to an old Russian nuclear submarine and are swearing that the periscope was maintained. We are talking about a freaking defaulted credit card debt being transferred from a regulated financial institution to a publicly traded company that is in the business of buying and collecting on these debts.

Be prepared for the judge to say "if you think the whole system is a vast conspiracy, then write an exposé for Rolling Stone and win a Pulitzer, until then - JUDGEMENT FOR PLAINTIFF - NEXT!!!!"

 

 

[cshot37]

14 minutes ago, Goody_Ouchless said:

Midland's entire business is based on the adoption of business records from other entities.

I agree this is how Midland does business.  The question is, who if anyone at Midland has personal knowledge of the Original Creditor's record keeping.  It has nothing to do with splitting hairs, or a vast conspiracy.  If I wanted to prove a vast conspiracy and show how poorly the Junk Debt Buying world was regulated I could reference televisions John Oliver, he started his own JDB just to prove how easy it was and how unregulated it is, going so far as to purchase millions in debt and forgive it on a national television.

[Goody_Ouchless]

It's not "Midland," it's the entire developed World's economy. At some point, absent strong evidence to the contrary, we, as a society, have to trust that the system works. I mean, where does it end - when you get money from an ATM do you immediately run to the nearest office of the US Treasury to make sure your twenty bucks isn't "fake?" Every time I was sued by Midland and Cavalry I was able to go to a drawer, and find the old CC. I could check my email for old statements and see that everything was legit - first time we got sued we called the bank and they told us who they sold the account to. I mean, those are the facts and you can't win in court when the facts are against you.

The biggest mistake that people make around here is to put the word "junk" in front of the term "debt buyer," especially when dealing with a firm like Midland. There is nothing "junky" about their paper - they own your account and can prove it - every day of the week.

If you are doing this goofy discovery business in a desperate attempt to skate on a valid debt, more power to you. Though, as Clydesmom said, those tactics don't work anymore. If you really believe Midland and the Bank are lying, then maybe you need more help than this board can offer.

 

 

[Clydesmom]

2 hours ago, cshot37 said:

I don't know how someone at one company can have personal knowledge of what another company does, but they claim that this is the case.

It is simple:  basic accounting and record keeping.  This is not rocket science.  You started at the account inception with a zero balance.  Over time charges were made and credit debited.  Payments were made and credits given.  Payments stopped and a defaulted amount charged off.  They have account statements from the OC.  

You already screwed this up having them admit they bought the account named in the complaint.  Now they have established standing as the assignee.

Next the Judge will ask you if the address and name on the statements are  yours.  You cannot lie.  Once you admit that yes, that is your name, yes that is your SSN and yes, that is your address you are toast.  Game over:  they have standing and the account is yours. 

The notion that this will play out like some legal drama with a lot of back and forth is nonsense.  That USED to happen when all Midland bought was a spreadsheet and no supporting account documents.  Not anymore.  In fact, if you are in Houston, Denton, San Antonio, Austin, Ft. Worth or certain Dallas precincts it will be quick and to the point.  The Judges don't waste time and some have been know to tell pro-se defendants to keep quiet. 

Is there a chance and you are fortunate and get a Judge who remains objective:  sure but I would not be banking on that.

 

[Goody_Ouchless]

20 minutes ago, Clydesmom said:

Is there a chance and you are fortunate and get a Judge who remains objective:  sure but I would not be banking on that.

...and an objective judge will definitely look at the facts. ...and rule for Midland.

[cshot37]

Well, I talked to a Texas Consumer attorney about my wife's case.  We gave him all of the correspondance between us and Midland.  After looking at it for less that 10 minutes he asked us if we want $3000 from Midland.  He immediatelty noted 3 separate FDCPA violations and told us our case was already won.  Of course the man we spoke with was Jerry Jarzombek, probably the leading consumer attorney in the state.  We were told that for the most part we did everything right as a pro se defendant and that there were only a couple of things he would have done differently, namely hitting them for their violations at the very beginning instead of dragging this out for almost 4 months.

Goes to show you that some people on this forum not familiar with Texas Law should not be commenting on cases in Texas.

[Goody_Ouchless]

1 hour ago, cshot37 said:

He immediatelty noted 3 separate FDCPA violations and told us our case was already won. 

 

1 hour ago, cshot37 said:

Goes to show you that some people on this forum not familiar with Texas Law should not be commenting on cases in Texas.

OK, I'll bite. What are the FCDPA violations, as I don't see them in your prior posts. And what bearing does Texas law have on Federal violations?

 

[BV80]

2 hours ago, cshot37 said:

After looking at it for less that 10 minutes he asked us if we want $3000 from Midland.  He immediatelty noted 3 separate FDCPA violations and told us our case was already won. 

I don't see where he's getting $3000 for 3 violations.  The statutory award under the FDCPA is "per action" (lawsuit).  It is not a $1000 award for each violation.  Perhaps you misunderstood him.

[Clydesmom]

20 minutes ago, BV80 said:

I don't see where he's getting $3000 for 3 violations. 

He isn't.  A claim like that doesn't even sound like Jerry.   He is way too smart for that.  I question the validity of the statement made because based on what was posted here I don't see any violations either.  

[cshot37]

56 minutes ago, Goody_Ouchless said:

OK, I'll bite. What are the FCDPA violations, as I don't see them in your prior posts. And what bearing does Texas law have on Federal violations?

We never noticed, but the case was filed in the wrong JP Court, it should have been precinct 1 but was filed in precinct 2. a clear FDCPA violation

Texas has its own finance code with its own rules and regulations and penalties.  The attorney found violations there as well.  Several violations of Texas finance law were found as well.   

Edited March 6, 2018 by cshot37
misspellings

[cshot37]

27 minutes ago, BV80 said:

I don't see where he's getting $3000 for 3 violations.  The statutory award under the FDCPA is "per action" (lawsuit).  It is not a $1000 award for each violation.  Perhaps you misunderstood him.

It is possible, he also noted violations of the Texas Finance Code and as I looked into that this morning each of those violations, if awarded are subject to penalties of $100 to $500 per violation.