Midland Funding/Kohn Law Firm - Motion for Summary Judgement against me - need to respond

[ZBoy]

Hello all,

I've been sued by Midland Funding LLC with the help of Kohn Law Firm in Outagamie County, WI and am at the stage where I need to respond to their Motion for Summary Judgement. They provided a 'Bill of Sale' and 'Affidavit of Sale of Account By Original Creditor' signed by SVP Sean Cooney of Citibank (the bank of the alleged purchased account) along with an 'Asset Schedule' where they blacked out information pertaining to them having 'sold a pool of charged-off accounts' as stated in the affidavit. They also included an affidavit of a MCM employee stating she reviewed electronic records showing they purchased the debt from Citibank. Lastly, they included a card agreement and credit card statements with a breakdown of charges/interest/late fees from Feb 2017-Dec 2017. 

Background: I received a letter from Citibank dated January 30, 2018 stating my account was placed with Midland Funding LLC. I then received a letter dated June 13, 2018 from Kohn Law pertaining to said account notifying me they were retained by Midland Funding to collect the debt. I never received anything from Midland Funding LLC directly from January to June. On November 20, 2018, I received notification I was being sued and court summons via mail. I attended pre-trial and made a spoken general submission to refute the claim on grounds Midland Funding didn't have enough evidence they owned the debt. A trial was set and then pushed back a few months at the request of Kohn. They then submitted Motion for Summary Judgement on Feb 28, 2019 and a hearing was scheduled for this Monday, April 1, to meet in front of a judge with my answer. 

I have consulted 2 lawyers regarding my case and didn't get much out of it so I'm hoping the experts here can lend a hand. The first lawyer told me to answer with two factual complaints - Firstly, there is no signed contract between myself and Citibank for the original debt. Secondly, there is the issue of standing Midland Funding owns the account in question - the bill of sale and affidavit presented does not list the specific alleged account. The second lawyer agreed with the second factual complaint but didn't have much input otherwise. 

I feel comfortable including the issue of standing in my answer but think I need a little more ammo than 1 factual complaint if I want to win a dismissal for summary judgement. 

I found a video on YT of a debtor who posted a video of his response in court (about 5 yrs ago) to Motion for Summary Judgement vs Midland Funding LLC where he won and am thinking of using some of his arguments.

I will post what I have for an answer here - if anyone can provide advice/tips/critique/personal experiences it would be greatly appreciated! 

Factual dispute #1: 
In the card agreement provided by the Plaintiff, on Page 1 there is a strict definition of the terms ‘we, us, and our’ that refers specifically to Citibank, N.A., the issuer of the account. On page 7 under the Assignment clause, it is stated: ‘We may assign any or all of our rights and obligations under this Agreement to a third party.’ While the concept of assignment is generally understood, the definitions in this contract concerning the parties are explicit – when Citibank refers to themselves solely as ‘we, us, and our’ they neglect to mention a further signing or third party. While this contract may or may not have been assigned by Citibank to Midland Funding LLC, according to the definition of this contract in the underlying portion: ‘To the extent permitted by law, you are liable to us for our legal costs if we refer collection of your account to a lawyer who is not our salaried employee. These costs may include reasonable attorneys’ fees. They may also include costs and expenses of any legal action.’ I feel for that reason there is a question of material dispute, unless Midland Funding LLC is a subsidiary of Citibank.

Factual dispute #2: 
‘The Bill of Sale and Assignment’ and ‘Affidavit of Sale of Account by Original Creditor’ provided to the court by the plaintiff signed by Sean Cooney, Senior Vice President of Citibank, N.A. (CBNA), states “CBNA sold a pool of charged-off accounts by a Forward Flow Purchase and Sale Agreement and a Bill of Sale to Midland Funding LLC”. Also included is an ‘Exhibit 1 (Asset Schedule)’ and ‘Certificate of Conformity’ signed by Carolyn E. Huges. Regarding this paperwork, there is an issue of material fact Midland Funding LLC purchased a specific account under my name. 

Factual dispute #3: The copies of the credit card statements provided to the court and defendant are not covered by the affidavit of Latasha Wilson and are not mentioned in the affidavit. In Latasha Wilson’s affidavit, she describes herself as a Legal Specialist with access to pertinent account records for Midland Credit Management (MCM) under the assumption they are owners of the alleged account based on ‘electronic records’. I do not believe she is an employee of Citibank, however – therefore she cannot have first-hand knowledge of the account which I would believe would make her affidavit hearsay. 

Factual dispute #4: No signatures from myself and no witnesses as far of an oral contract, have been provided by the plaintiff in their Motion for Summary Judgement – to best of my memory, I have no recollection of this debt. 
 

Sorry for the long post, I would be forever grateful if someone can help out! 

[Clydesmom]

6 minutes ago, ZBoy said:

The first lawyer told me to answer with two factual complaints - Firstly, there is no signed contract between myself and Citibank for the original debt.

There never is a signed contract in a credit card case and the court knows this.  The attorney was DEAD WRONG on this "fact."  The court will not ask for nor expect a signed contract.  Statements from CITI to you showing you had the account, they were mailed to your address, and you used and paid on the account are sufficient.  Read the terms of the card agreement.  Accepting those terms, using the card, and making payments monthly re-affirms the contract between you and CITI that they issued you credit and you will re-pay it.

8 minutes ago, ZBoy said:

Factual dispute #1: 
In the card agreement provided by the Plaintiff, on Page 1 there is a strict definition of the terms ‘we, us, and our’ that refers specifically to Citibank, N.A., the issuer of the account. On page 7 under the Assignment clause, it is stated: ‘We may assign any or all of our rights and obligations under this Agreement to a third party.’ While the concept of assignment is generally understood, the definitions in this contract concerning the parties are explicit – when Citibank refers to themselves solely as ‘we, us, and our’ they neglect to mention a further signing or third party. While this contract may or may not have been assigned by Citibank to Midland Funding LLC, according to the definition of this contract in the underlying portion: ‘To the extent permitted by law, you are liable to us for our legal costs if we refer collection of your account to a lawyer who is not our salaried employee. These costs may include reasonable attorneys’ fees. They may also include costs and expenses of any legal action.’ I feel for that reason there is a question of material dispute, unless Midland Funding LLC is a subsidiary of Citibank.

NO.  It is basic contract law that they can sell your account to a third party i.e. assign it to an assignee.  When the account is purchased the assignee steps into the place of CITI and becomes the "we, us, and our" referred to in the card agreement.  They get all rights and responsibilities that CITI had which means that clause that says they can re-coup their attorney fees and costs allows Midland to do the same in their suit against you. 

10 minutes ago, ZBoy said:

Factual dispute #2: 
‘The Bill of Sale and Assignment’ and ‘Affidavit of Sale of Account by Original Creditor’ provided to the court by the plaintiff signed by Sean Cooney, Senior Vice President of Citibank, N.A. (CBNA), states “CBNA sold a pool of charged-off accounts by a Forward Flow Purchase and Sale Agreement and a Bill of Sale to Midland Funding LLC”. Also included is an ‘Exhibit 1 (Asset Schedule)’ and ‘Certificate of Conformity’ signed by Carolyn E. Huges. Regarding this paperwork, there is an issue of material fact Midland Funding LLC purchased a specific account under my name. 

This is your best option.  The burden of proof is on you that these documents do not meet Wisconsin law to prove they bought your account.

11 minutes ago, ZBoy said:

Factual dispute #4: No signatures from myself and no witnesses as far of an oral contract, have been provided by the plaintiff in their Motion for Summary Judgement – to best of my memory, I have no recollection of this debt. 

Again, the court will not be looking for your signature or an oral contract between you and Midland.  

You likely have enough to argue to defeat a MSJ.  Whether it is enough to prevail at trial is not clear.  

[ZBoy]

Clydesmom - thank you for the lightning fast response - what do you think about Factual dispute #3 stating she doesn't mention the statements in the affidavit? 

[BV80]

@ZBoy

You’re going to need to include more than what you’ve written.  You’ve written your opinions, but they are unsupported.

What evidence did they include?   Can you show us a copy of the affiavit(s) provided by the plaintiff?

 

[ZBoy]

51 minutes ago, BV80 said:

@ZBoy

You’re going to need to include more than what you’ve written.  You’ve written your opinions, but they are unsupported.

What evidence did they include?   Can you show us a copy of the affiavit(s) provided by the plaintiff?

 

Screenshot_20190330-003911_Drive(1).pdf

Here is a pdf of the pertinent info to the case

[Robby8900]

You might consider filing a Motion to Strike Affidavit. My understanding is if an affidavit is attached to a complaint that violates FDCPA among other state laws (Acts). 

Gionis v. Javitch, Block & Rathbone 405 F. Supp. 2d 856, 867 (S.D. Ohio 2005).

Midland Funding LLC v. Brent, 644 F. Supp. 2d 961(N.D. Ohio 2009)

[ZBoy]

Is it possible to use an argument that I had the 3 credit bureau's remove the Midland Funding Collection account from my credit report by using a credit restoration agency to send inquiries on my behalf and sucessfully remove them? 

[ZBoy]

6 hours ago, Robby8900 said:

You might consider filing a Motion to Strike Affidavit. My understanding is if an affidavit is attached to a complaint that violates FDCPA among other state laws (Acts). 

Gionis v. Javitch, Block & Rathbone 405 F. Supp. 2d 856, 867 (S.D. Ohio 2005).

Midland Funding LLC v. Brent, 644 F. Supp. 2d 961(N.D. Ohio 2009)

Thank you - I did see the Brent case but unfortunately they have pretty solid wording in all of their paperwork so it's difficult to refute.

[Robby8900]

1 hour ago, ZBoy said:

Thank you - I did see the Brent case but unfortunately they have pretty solid wording in all of their paperwork so it's difficult to refute.

In the Gionas case, the court determined that an affidavit attached to a complaint makes the affiant a complaining witness attempting to collect a debt.

[Clydesmom]

1 hour ago, ZBoy said:

Is it possible to use an argument that I had the 3 credit bureau's remove the Midland Funding Collection account from my credit report by using a credit restoration agency to send inquiries on my behalf and sucessfully remove them?

No.  Two reasons:  first;  your credit reports are hearsay and not admissible in court.  Second:  Midland often deletes before suing so that you have no counter claims for FDCPA violations.  They are also not required to report at all.  Only that they do so accurately if they do report.  

[BV80]

54 minutes ago, Robby8900 said:

In the Gionas case, the court determined that an affidavit attached to a complaint makes the affiant a complaining witness attempting to collect a debt.

The attachment of an affidavit to a complaint is not an FDCPA violation.  In the 2 cases you cited, the courts ruled the affidavits contained false and misleading statements that violated the Act.   

In Gionis, the consumer sued the law firm that represented an original creditor.  Attorneys who regularly collect debts are bound by the FDCPA.  

“When Defendant attached a copy of the affidavit to the complaint, the affidavit became part of the complaint.”

”As noted earlier, creditors, in Ohio, are not permitted to recover attorney fees in connection with debt collection actions involving personal, family, or household debt.”

”Defendant nevertheless attached Vick's affidavit, referring to a potential for the collection of attorney fees, to the complaint. The Court concludes, as a matter of law, that the "least sophisticated consumer" would be confused by this. Defendant's conduct could "unlawfully scare" the consumer by making her believe that, if she did not immediately pay her credit card bill, she could be held liable for substantial attorney fees in addition to the relief sought in the complaint.”

In any case, the 2 rulings are from Ohio courts (6th Circuit) and would not be precedent in the OP’s state of Wisconsin (7th Circuit).  

[ZBoy]

I came across a Facebook page called 'Stop 3rd Party Debt Collectors - No Fee Service' who provided the attached template to use as an answer.  What do you guys think? 

FREE Template for Web Clients Midland 2018.docx

[Clydesmom]

1 hour ago, ZBoy said:

What do you guys think? 

I would not touch that garbage with a 10 foot pole.  Most of it is RIDDLED with errors and all it does is tell Midland and their lawyers you can cut and paste nonsense you found on the internet.  Use it at your own peril.

**Edited to ask:  why are you filing another answer?  Didn't you do that orally at the pre-trial?  If so, then it is way way too late for that now.  You should have filed an opposition to their MSJ already.

[ZBoy]

8 minutes ago, Clydesmom said:

I would not touch that garbage with a 10 foot pole.  Most of it is RIDDLED with errors and all it does is tell Midland and their lawyers you can cut and paste nonsense you found on the internet.  Use it at your own peril.

**Edited to ask:  why are you filing another answer?  Didn't you do that orally at the pre-trial?  If so, then it is way way too late for that now.  You should have filed an opposition to their MSJ already.

I responded to their original complaint orally at the pre-trial 01/02 and later they submitted a MSJ on 02/28 - the court then set a 04/01 MSJ hearing where I need to attend in person - in my county this is the required next step. I could have filed an answer with the court before this point but the court told me it was not required and I procrastinated to be honest. 

If you were in this situation what would you do? 

[Clydesmom]

1 hour ago, ZBoy said:

If you were in this situation what would you do?

Put all my energy in to defeating that MSJ.

[Robby8900]

9 hours ago, BV80 said:

The attachment of an affidavit to a complaint is not an FDCPA violation.  In the 2 cases you cited, the courts ruled the affidavits contained false and misleading statements that violated the Act.   

In Gionis, the consumer sued the law firm that represented an original creditor.  Attorneys who regularly collect debts are bound by the FDCPA.  

“When Defendant attached a copy of the affidavit to the complaint, the affidavit became part of the complaint.”

”As noted earlier, creditors, in Ohio, are not permitted to recover attorney fees in connection with debt collection actions involving personal, family, or household debt.”

”Defendant nevertheless attached Vick's affidavit, referring to a potential for the collection of attorney fees, to the complaint. The Court concludes, as a matter of law, that the "least sophisticated consumer" would be confused by this. Defendant's conduct could "unlawfully scare" the consumer by making her believe that, if she did not immediately pay her credit card bill, she could be held liable for substantial attorney fees in addition to the relief sought in the complaint.”

In any case, the 2 rulings are from Ohio courts (6th Circuit) and would not be precedent in the OP’s state of Wisconsin (7th Circuit).  

Section 1692e(5) prohibits debt collectors from threatening "to take any action that cannot legally be taken or that is not intended to be taken." 15 U.S.C. § 1692e(5). Section 1692e(10) prohibits debt collectors from using "any . . . deceptive means to collect or attempt to collect any debt." 15 U.S.C. § 1692e(10). Plaintiff alleges that, by attaching Vick's affidavit to the complaint, Defendant violated both of these provisions. The Court agrees

[ZBoy]

1 hour ago, Robby8900 said:

Section 1692e(5) prohibits debt collectors from threatening "to take any action that cannot legally be taken or that is not intended to be taken." 15 U.S.C. § 1692e(5). Section 1692e(10) prohibits debt collectors from using "any . . . deceptive means to collect or attempt to collect any debt." 15 U.S.C. § 1692e(10). Plaintiff alleges that, by attaching Vick's affidavit to the complaint, Defendant violated both of these provisions. The Court agrees

Unfortunately they didn't attach the affidavit to the complaint - they submitted it later with the MSJ paperwork. Running out of options not sure I have any shot at winning

[ZBoy]

Is it possible to make an argument and use information from a different circuit court? The Idaho statutes mentioned are very similar to WI statues.

I came across 2 good cases in Idaho, but they are the 9th circuit and Wisconsin in the 7th. 

https://www.hollandlawfirm.com/2015/09/24/defective-debt-buyer-affidavits-and-the-lack-of-data-integrity-other-peoples-records-opr-are-not-business-records-of-midland-funding/

Next case can be found near end of article between Rodney Miner and Cavalry SVP 

https://toughnickel.com/personal-finance/You-Can-Beat-Credit-Card-Debt-Collectors

[ZBoy]

Wisconsin Statute 909.02 (12)(a)(b) -  'Self-authentication' is similar to the Idaho Rule of Evidence statute 902(11)

(12) Certified domestic records of regularly conducted activity.

(a) The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under s. 908.03 (6) if accompanied by a written certification of its custodian or other qualified person, in a manner complying with any statute or rule adopted by the supreme court, certifying all of the following:

1. That the record was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters.

2. That the record was kept in the course of the regularly conducted activity.

3. That the record was made of the regularly conducted activity as a regular practice.

(b) A party intending to offer a record into evidence under par. (a) must provide written notice of that intention to all adverse parties and must make the record and certification available for inspection sufficiently in advance of the offer of the record and certification into evidence to provide an adverse party with a fair opportunity to challenge the record and certification.

Wisconsin Statute 908.03(6) - Hearsay exceptions; availability of declarant immaterial' may be able to be used similar to Idaho 803(6) Rules of Evidence

(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with s. 909.02 (12) or (13), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.

Also just found this case from WI

https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf%3Fcontent%3Dpdf%26seqNo%3D158102&ved=2ahUKEwjcquz1zKzhAhUNVK0KHR21Cl8QFjAAegQIAhAB&usg=AOvVaw0BOjC8kKTDeWP63Nv_tKBc

[fisthardcheese]

Hopefully you haven't missed your change to file an opposition to this MSJ.

I would include the genuine issue in dispute of Subject Matter Jurisdiction.  That Credit Card Agreement they gave you should include an arbitration clause in it.  That clause states that arbitration, not court, is the proper venue for this kind of dispute.  I would include this in your MSJ opposition and then I would file a Motion to Compel Arbitration prior to your hearing tomorrow.  I would had copies to the attorney and I would ask the court to hear your motion first before the MSJ because it speaks to jurisdiction and if granted would render the MSJ moot.

This is all just a stab in the dark, as I am assuming you probably missed your chance to respond to the MSJ they filed over a month ago.

[ZBoy]

1 minute ago, fisthardcheese said:

Hopefully you haven't missed your change to file an opposition to this MSJ.

I would include the genuine issue in dispute of Subject Matter Jurisdiction.  That Credit Card Agreement they gave you should include an arbitration clause in it.  That clause states that arbitration, not court, is the proper venue for this kind of dispute.  I would include this in your MSJ opposition and then I would file a Motion to Compel Arbitration prior to your hearing tomorrow.  I would had copies to the attorney and I would ask the court to hear your motion first before the MSJ because it speaks to jurisdiction and if granted would render the MSJ moot.

This is all just a stab in the dark, as I am assuming you probably missed your chance to respond to the MSJ they filed over a month ago.

My county is different in that it requires a hearing to respond to MSJ so I can respond tomorrow

[fisthardcheese]

Just now, ZBoy said:

My county is different in that it requires a hearing to respond to MSJ so I can respond tomorrow

If that is the case, then I would get the MTC written up and bring several copies with you.  I would do everything I could to get your motion heard first and hammer the point that Court is the wrong jurisdiction for this matter and that it should be moved to JAMS arbitration per the Credit Card Agreement.

[ZBoy]

3 minutes ago, fisthardcheese said:

If that is the case, then I would get the MTC written up and bring several copies with you.  I would do everything I could to get your motion heard first and hammer the point that Court is the wrong jurisdiction for this matter and that it should be moved to JAMS arbitration per the Credit Card Agreement.

Did you check out my post above your initial post - I edited it several times but it appears as though using statutes regarding hearsay and rule of evidence has worked in other cases (at least to avoid MSJ)

[fisthardcheese]

3 minutes ago, ZBoy said:

Did you check out my post above your initial post - I edited it several times but it appears as though using statutes regarding hearsay and rule of evidence has worked in other cases (at least to avoid MSJ)

They may work to avoid MSJ, but would they then be used against you to claim you have waived your right to arbitration by participating in the Court's jurisdiction?   I would rather go hard with the arbitration argument and get a granted MTC where I know my odds of winning skyrocket to right around 100%

[ZBoy]

8 minutes ago, fisthardcheese said:

They may work to avoid MSJ, but would they then be used against you to claim you have waived your right to arbitration by participating in the Court's jurisdiction?   I would rather go hard with the arbitration argument and get a granted MTC where I know my odds of winning skyrocket to right around 100%

There is a segment on Arbitration in the original credit agreement - can they already argue I participated by attending the pre-trial on 01/02?