ZBoy Posted March 30, 2019 Report Share Posted March 30, 2019 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! Quote Link to comment Share on other sites More sharing options...
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