SHELLY7

Midland Funding Suing In NY

Recommended Posts

On 2/9/2019 at 8:30 AM, usctrojanalum said:

New York has a developed some good case law on JDB cases,

Would you please list a few of your favorites?

 

On 2/11/2019 at 8:38 AM, usctrojanalum said:

Here is why I don't like using arbitration against JDB's but I think it makes a ton of sense against OC's. Midland will never have the documents or witnesses to win their claims in court in NY. They need authenticated documents from the original creditor and a witness from the original creditor.

A debt buyer can't use their own custodian in NY?  The witness must be from the original creditor?  Does any of the aforementioned case law demonstrate this requirement?

Are "authenticated documents" in NY something different than what debt buyers usually produce; selected pages from the forward flow agreement and a notarized affidavit?

Are these requirements (witness form the original creditor) in NY only for contested cases?  What about defaults and summary judgments?

Before this thread fades into the ether, the contents in the following posts to this thread; 1 2 3 4 should be fleshed out so that future searches don't cause confusion.

  • Like 1

Share this post


Link to post
Share on other sites
42 minutes ago, Pericles said:

A debt buyer can't use their own custodian in NY?  The witness must be from the original creditor?  Does any of the aforementioned case law demonstrate this requirement?

Are "authenticated documents" in NY something different than what debt buyers usually produce; selected pages from the forward flow agreement and a notarized affidavit?

Are these requirements (witness form the original creditor) in NY only for contested cases?  What about defaults and summary judgments?

Before this thread fades into the ether, the contents in the following posts to this thread; 1 2 3 4 should be fleshed out so that future searches don't cause confusion.

Hi all, this is usctrojan here. Had to make a new account because my old one got like stuck in cyber never never land. Excited about my first win in a consumer debt case. 

No, a debt buyer can't use their own custodian. They need a witness from original creditor to authenticate OC's records. A good example of this is found in Unifund CCR Partners v Youngman, 89 A.D.3d 1377 which states "plaintiff submitted an affidavit of its agent, a “Legal Liaison” employed by plaintiff rather than Chase, along with exhibits that included credit card statements and account balance documents from the business records of Chase. We reject plaintiff's contention that it thereby submitted the requisite business records to establish its standing." Since custodians of debt buyers will not have knowledge of the OC's business practices, they will need a witness from the OC. 

Authenticated documents is another term that means documents that are in admissible form. To qualify a document as a business record, need someone with personal knowledge of business practices of the OC. Again, JDB custodian won't have that. 

Default judgments are entered by clerk's and not judges, so most default judgments are entered with documents that are either not authenticated or with witnesses who are merely JDB custodians.

Summary judgments are contested cases (you can't have summary judgment unless defendant filed an answer), but some who are unrepresented might not know how to advocate that the evidence submitted is not in admissible form or sufficient to meet a prima facie burden.

 

  • Like 2

Share this post


Link to post
Share on other sites
2 hours ago, SJULawAlum said:

To qualify a document as a business record, need someone with personal knowledge of business practices of the OC. Again, JDB custodian won't have that.

I've witnessed trials (deft had counsel) in states other than NY where the debt buyer custodian would testify that they took repeated field trips to various original creditors to learn about their business practices.  The debt buyer attorney would argue that this met the personal knowledge threshold.  The testimony was admitted over hearsay objections.

So, do judges in these sorts of cases in NY never exercise (or abuse) their discretion to admit this sort of custodian testimony into evidence in debt buyer cases that go to trial?

Or, are you saying that debt buyers in NY won't even bother trying to proceed to trial with merely their own custodian as the primary witness?  That in all cases where the defendant is represented and his attorney sufficiently foreshadows (during discovery) his intent to require a witness from the original creditor, those cases are dropped before trial?

And that if some case (where the deft is represented) does somehow manage to go to trial, the judges invariability don't admit custodian testimony into evidence?  It is always found to be hearsay?

Edit: I've just read a few cases, for example; this one, which seem to be consistent with SJULawAlum's representations.  I don't know if this is a matter of permissible discretion for any particular judge in any particular case, or if to do otherwise would always be a reversible abuse of discretion.  If a debt buyer’s custodian generally cannot attest to the business records of the original creditor, it would seem that NY exceeds CA (& CA's CCP) as far as the extent of witnesses and evidence required for the buyer to prevail.

Share this post


Link to post
Share on other sites

Well, I haven't been an attorney long. But I have never seen any debt buyer in NY doing field trips to OC to get acquainted with their business practices. That would present interesting legal issues to litigate though.

In the case law I've read, it is pretty clear that only having custodian testimony, without more, is not enough in NY.

I know a collection attorney who represented a medical JDB. He told me the JDB and the medical provider had an agreement that the medical provider would be available to provide affidavits for motions and show up at court appearances to testify. I have NEVER seen that among the consumer credit plaintiff's and JDB's. 

I've handled about 5 JDB cases now. When I have pressed them for names and addresses of witnesses to appear at trial; and have taken discovery seriously; they have all folded. They know they can't prove their cases and go for the low hanging fruit. I've gotten three dismissed via agreement, one was for a sum of $33,000.

And today I got one dismissed via a judges order where the judge denied a JDB summary judgment and granted the cross-motion to compel arbitration.

 

  • Like 5

Share this post


Link to post
Share on other sites

Ok, so back on here with two questions, as well as updates that I'll separate not to confuse;) 

My first update is that as many of you know thanks in no small part to this forum, and my fabulous genius of an attorney-plaintiff's MSJ was roundly defeated and our cross-motion to compel was granted!! (woot) The wrinkle is the judge however, rather than issuing a stay of case pending arb, the judge dismissed the case without prejudice, and ordered me to commence arbitration by mid-October.  The judge also ordered that plaintiff could motion to restore the case if I failed to commence arb by the deadline.  (See below for specifics:)  

After receipt of the judge's Order on Motion, my attorney emailed plaintiff's attorney of my intent to file in JAMS by the court's deadlines. He also reminded plaintiff of their fee obligation in JAMS under the consumer rules and the Synchrony cc agreement.  He asked if plaintiff planned to follow into arb. He offered to stipulate to a mutual walkway with prejudice if plaintiff wanted to avoid the costs/time of arb. We haven't had a response to the email. They may obviously ignore it all and be content with a dismissal without prejudice. I don't know what leverage if any I have here?

“After due deliberation, it is Ordered that plaintiff’s motion for summary judgment is denied in all respects. Defendant’s cross-motion to dismiss and compel arbitration is granted to the extent that the parties are directed to proceed to arbitration and the complaint is dismissed without prejudice. Defendant is directed to commence the arbitration proceeding per the cardholder agreement. If defendant fails to do so on or before October 15, 2019, plaintiff may move to restore this case to the court’s calendar and may renew its motion for summary judgment on the merits of the claim.”

 

@Brotherskeeper @usctrojanalum @SJULawAlum @Goody_Ouchless @nobk4me

@Brotherskeeper

Share this post


Link to post
Share on other sites

My second update and question is I need to file a JAMS demand by the Oct. deadline to comply with the judge's order. While I know I can ask Midland to pay my filing fee, I've decided to speed things up by paying it. I don't want to give Midland ANY reason to claim I defaulted on the arb and try to go back to court as the judge's order allows.

I'M THRILLED with the case dismissal and outcome! However, am wondering what leverage do I have to get the tradeline removed if any, if they decide not to pursue arb?

Lastly, am struggling a bit to come up with plausible consumer violation claims to allege in JAMS and how to value those claims in dollars. I realize I don't have to be too specific on the demand form, but I do need to come up with something! Following fists excellent thread on arb I checked and cross-referenced my 3 credit reports for discrepancies/any inflations/interest etc, but to my untrained eye couldn't find any? I would appreciate any help anyone has to offer to where I could find possible violations and the fee claims for said violations for the jams demand form perhaps even on another site?

Any and all help to any above questions would be extremely appreciated (especially from the arb experts on here who've helped me in the past and who I'll tag here that I can think of;)

I really don't know what I would have done without the forum and can not again thank you enough!

@Brotherskeeper @usctrojanalum @SJULawAlum @nobk4me @fisthardcheese @Goody_Ouchless

and sorry if I shouldn't have tagged twice, I somewhat forget forum rules! but again on a double note more than appreciate the help!

Share this post


Link to post
Share on other sites
5 hours ago, SHELLY7 said:

My second update and question is I need to file a JAMS demand by the Oct. deadline to comply with the judge's order. While I know I can ask Midland to pay my filing fee, I've decided to speed things up by paying it. I don't want to give Midland ANY reason to claim I defaulted on the arb and try to go back to court as the judge's order allows.

I'M THRILLED with the case dismissal and outcome! However, am wondering what leverage do I have to get the tradeline removed if any, if they decide not to pursue arb?

Lastly, am struggling a bit to come up with plausible consumer violation claims to allege in JAMS and how to value those claims in dollars. I realize I don't have to be too specific on the demand form, but I do need to come up with something! Following fists excellent thread on arb I checked and cross-referenced my 3 credit reports for discrepancies/any inflations/interest etc, but to my untrained eye couldn't find any? I would appreciate any help anyone has to offer to where I could find possible violations and the fee claims for said violations for the jams demand form perhaps even on another site?

Any and all help to any above questions would be extremely appreciated (especially from the arb experts on here who've helped me in the past and who I'll tag here that I can think of;)

I really don't know what I would have done without the forum and can not again thank you enough!

@Brotherskeeper @usctrojanalum @SJULawAlum @nobk4me @fisthardcheese @Goody_Ouchless

and sorry if I shouldn't have tagged twice, I somewhat forget forum rules! but again on a double note more than appreciate the help!

I wouldn't pay a penny.  I think you are really over thinking this.  Is your attorney still working on this case?  He should have known how to handle things.  If this were me, I would immediately file the JAMS case and send NO money.  I would wait to see what Midland does.  I believe there is a 95% chance they will completely ignore the case or ask for a settlement once their deadline to pay is sent by JAMS.  If the arbitration is closed due to non payment, then you have the option to file a motion with the court to sanction the Plaintiff for not following the courts order and perhaps ask them to change the dismissal to a dismissal with prejudice as part of the sanctions.

If Midland chooses to settle, the settlement should include language that says you are released of all liability of the account and debt.  This release means they should remove it from your credit reports upon a dispute to the CRAs.  They will not be able to verify a debt that you are released from (without violating a few consumer laws) and therefore the CRAs will have to delete it.

Lastly, if all the dates and amounts on your credit reports are 100% accurate down to the penny and that all those amounts are the same amount they sued me for to the penny (which would be unusual), then I would check phone records and see if they called my cell phone in potential TCPA violations.

Share this post


Link to post
Share on other sites
10 hours ago, fisthardcheese said:

If the arbitration is closed due to non payment, then you have the option to file a motion with the court to sanction the Plaintiff for not following the courts order and perhaps ask them to change the dismissal to a dismissal with prejudice as part of the sanctions.

Here's the court order:

16 hours ago, SHELLY7 said:

“After due deliberation, it is Ordered that plaintiff’s motion for summary judgment is denied in all respects. Defendant’s cross-motion to dismiss and compel arbitration is granted to the extent that the parties are directed to proceed to arbitration and the complaint is dismissed without prejudice. Defendant is directed to commence the arbitration proceeding per the cardholder agreement. If defendant fails to do so on or before October 15, 2019, plaintiff may move to restore this case to the court’s calendar and may renew its motion for summary judgment on the merits of the claim.”

@fisthardcheese As I understand this order, the parties are "directed to proceed" to arb. Defendant is "directed to commence" it by 10/15 per the cc agreement. The court case is dismissed without prejudice. Only if defendant fails to commence by 10/15, can plaintiff restore the case, which appears to me to be a kind of quasi-stay of case--but only for the plaintiff. Once a case is dismissed w/out prejudice, can a defendant go back to restore it, if the court's order doesn't address any failure on the plaintiff's part?  

 

 

Share this post


Link to post
Share on other sites
3 hours ago, Brotherskeeper said:

Here's the court order:

@fisthardcheese As I understand this order, the parties are "directed to proceed" to arb. Defendant is "directed to commence" it by 10/15 per the cc agreement. The court case is dismissed without prejudice. Only if defendant fails to commence by 10/15, can plaintiff restore the case, which appears to me to be a kind of quasi-stay of case--but only for the plaintiff. Once a case is dismissed w/out prejudice, can a defendant go back to restore it, if the court's order doesn't address any failure on the plaintiff's part?  

 

 

I dont know the specific court rule or case law without doing research, but common sense tells me that a party can not just willingly disregard an ordercof the court without recourse simply because part of the order stipulates the plantiff may reopen the case for nonperformance.  The order does not preclude other actions, and there must be a way for the Defendant to notice the court of Plaintiff's non action.

I would say that Defendant is not looking to REOPEN the case per se, but to motion to sanction the Plaintiff for not performing a court ordered action. Anyone should be able to file some type of petition or motion for this.

Share this post


Link to post
Share on other sites
4 minutes ago, fisthardcheese said:

I would say that Defendant is not looking to REOPEN the case per se, but to motion to sanction the Plaintiff for not performing a court ordered action. Anyone should be able to file some type of petition or motion for this.

Thanks. This makes sense. I'm sure Shelly7 doesn't want to have anything more to do with court. @SJULawAlum likely knows how to do this if absolutely necessary. I hope Midland will agree to terms sooner rather than later and move on. 

Share this post


Link to post
Share on other sites

So this is where I took up issue with the judges order. He put a contingency for what would happen if consumer didn't file the arb, but did not put a contingency for what would happen if Midland didn't go into arb.

Technically, the judge can't force a party to go to arb. While the judge can compel the parties to arbitrate, there is nothing stopping a party from not proceeding with arbitration than forfeiting any rights they may have had with respect to the court case.  That's why contingencies are put in place. So here, consumer is directed to initiate arb, and if she doesn't court case can be restored.  

But I am not sure what the remedy is if Midland doesn't follow. Obviously, once consumer initiates Midland will not be open to successfully reopen the case before this judge. We would just file proof we complied with the judges order.

But there is nothing stopping Midland from filing another case in court since this dismissal was without prejudice. Yes, the same arguments would be made again and we'd be right back at square one... but that theoretically could happen. 

  • Like 1
  • Thanks 1

Share this post


Link to post
Share on other sites

Thank you everyone to weighing in really appreciate it. @SJULawAlum @Brotherskeeper @fisthardcheese

seems like a bit of a roundabout. STILL SO THRILLED THIER SMJ was denied and our mtc for arb granted. I guess I shall just plug away with filing JAMS and hope they don't sue me again sigh or find a rabbit hole loop to leverage them somehow:) onwards!

  • Thanks 1

Share this post


Link to post
Share on other sites

It is highly unlikely they would sue you again.  I don't think I have ever seen it happen with Midland.

When I file the JAMS case, again, I would send no filing fee in, and I would also include the judge's order granting the MTC to both JAMS and the attorney.  Shortly after JAMS sends the confirmation of the case, I would contact the attorney and see if they are willing to settle for a mutual release.  If you can get them to settle for a mutual release, that language should include the standard which "forever discharges" you of any liability to the account and debt.  This agreement would prevent them from suing again and would be as good as a dismissal with prejudice.

  • Like 1

Share this post


Link to post
Share on other sites
10 hours ago, fisthardcheese said:

It is highly unlikely they would sue you again.  I don't think I have ever seen it happen with Midland.

Thanks for weighing in, especially with all of your arb expertise @fisthardcheese and had to say, this is actually the SECOND time Midland has indeed sued me and with same delightful law firm no less-so I must be the exception to the rule 😱

When I file the JAMS case, again, I would send no filing fee in, and I would also include the judge's order granting the MTC to both JAMS and the attorney.  Shortly after JAMS sends the confirmation of the case, I would contact the attorney and see if they are willing to settle for a mutual release.  If you can get them to settle for a mutual release, that language should include the standard which "forever discharges" you of any liability to the account and debt.  This agreement would prevent them from suing again and would be as good as a dismissal with prejudice.

Hopefully NOW I can finally put this to rest with all of your help; thanks so much again everyone! 🙏👊

 

Share this post


Link to post
Share on other sites
1 hour ago, SHELLY7 said:

Thanks for weighing in, especially with all of your arb expertise @fisthardcheese and had to say, this is actually the SECOND time Midland has indeed sued me and with same delightful law firm no less-so I must be the exception to the rule 😱

@SHELLY7 Just to be very clear here, Midland filed a previous case against you but you were never served a summons and complaint, correct? This earlier case never went before a judge. The likelihood of Midland refiling a new lawsuit after losing a MSJ "in all respects," with a dismissal without prejudice, where the parties are directed to arbitration, has to be very slim indeed. 

Share this post


Link to post
Share on other sites

Figured it out sorry to those I tagged in question, hope I didn’t interrupt your day!

Edited by SHELLY7
Somewhat figured it out ;)

Share this post


Link to post
Share on other sites
On 9/19/2019 at 8:47 AM, SHELLY7 said:

Thanks for weighing in, especially with all of your arb expertise @fisthardcheese and had to say, this is actually the SECOND time Midland has indeed sued me and with same delightful law firm no less-so I must be the exception to the rule 😱

They re-sued you on the same debt a second time?

If that is the case, check your court rules.  Many courts have a rule that says a second voluntary dismissal IS an automatic dismissal with prejudice, or some equivalent.  There is usually something that limits someone from suing over and over and over on the same thing like that.

Share this post


Link to post
Share on other sites
2 hours ago, fisthardcheese said:

They re-sued you on the same debt a second time?

If that is the case, check your court rules.  Many courts have a rule that says a second voluntary dismissal IS an automatic dismissal with prejudice, or some equivalent.  There is usually something that limits someone from suing over and over and over on the same thing like that.

yes, we have gone back and forth on this one without a straight forward answer. they sued me for exact same debt/same law  firm (literally used exact summons etc) but I was in living in Nyc at the time so they never "served" me (don't think could get up to my apt literally) so am not sure how much it counts. I will double-check though my court rules on two cases thanks again @fisthardcheese

whilst filling out these jams forms I sure would like to put that lovely notorious jdb attorney firm that's now gone after me twice;) as some violations for unfair practices or at very least "pain and suffering";)

will double-check today and thanks again!

Share this post


Link to post
Share on other sites

@SJULawAlum If @SHELLY7 was never served or noticed of the complaint the first time Midland/Selip filed a complaint, does this rule apply? 

https://www.farrellfritz.com/rss-post/too-little-too-late-an-example-of-the-failure-of-cplr-306bs-safety-net/

New York Consolidated Laws, Civil Practice Law and Rules - CVP §306-b

Service of the summons and complaint, summons with notice, or of the third-party summons and complaint.

Service of the summons and complaint, summons with notice, or of the third-party summons and complaint shall be made within one hundred twenty days after their filing, provided that in an action or proceeding where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.

Share this post


Link to post
Share on other sites
36 minutes ago, Brotherskeeper said:
 

@SJULawAlum If @SHELLY7 was never served or noticed of the complaint the first time Midland/Selip filed a complaint, does this rule apply? 

https://www.farrellfritz.com/rss-post/too-little-too-late-an-example-of-the-failure-of-cplr-306bs-safety-net/

New York Consolidated Laws, Civil Practice Law and Rules - CVP §306-b

Service of the summons and complaint, summons with notice, or of the third-party summons and complaint.

Service of the summons and complaint, summons with notice, or of the third-party summons and complaint shall be made within one hundred twenty days after their filing, provided that in an action or proceeding where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.

@SJULawAlum Nevermind. It looks like they filed a dismissal without prejudice via a Notice of Discontinuance under CPLR 3217(a)(1).

Share this post


Link to post
Share on other sites

I guess I just feel lucky I didn't get a summary judgement then? I evidently had a court summons in June and then the same jdb attorney dismissed it in December?

so strange the workings of all this!

Share this post


Link to post
Share on other sites

it's just as much your story as mine @SJULawAlum so GUYS the update is that literally RIGHT before I was headed to post office (like mere seconds to send my arb stuff to jams) my lawyer got a call from some dude over at jdb law firm stating they would offer me a settlement in exchange for what I would pay for arb filing fee $250.

Obviously my lawyer is a genius (duh) and said he didn't know if I would settle so now feel as though ball is in my court as can use this as leverage to hopefully 🤞get what I want from midland otherwise I suppose why wouldn't I do arb?!? or go through with it rather...so now we will wait to see what their settlement offer is and go from there but just wanted to keep everyone in loop for future people and for my forever gratitude to those on my journey and STILL helping/weighing in. Obviously I am literally blessed with @SJULawAlum who not only is a whiz at NY law, great attorney and just wonderful person... but also to those who've helped me from the beginning and still do @Brotherskeeper and the arb godfather himself @fisthardcheese

I don't want to jinx anything but am hoping we've come this far can get what I want🤞🤞

  • Like 4

Share this post


Link to post
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.