MsKA

Machol and Johannes, Oklahoma

Recommended Posts

I was served a summons in October 2019, by Machol and Johannes, on behalf of a credit card company (for just over $2k). I am pre-law, and have some limited legal assistant experience, so I have been representing myself to push back against this. I filed an answer with the court, and mailed a certified copy to them, within two days. I did not hear anything further until January, when I received discovery docs. I prepared my responses to that, as well as drew up interrogatories and requests for M&J. I sent those documents certified, also, and filed them with the court (not required, but mostly just to be on the safe side, since I have read enough about M&J to know they are kind of shady and may try to claim no response). 

As of today, I have not received anything from M&J, but I got a notice from the court last week for a hearing scheduled this next Friday. The 30 day deadline for their discovery response was two days ago. Should I go ahead and file a motion to compel ahead of the hearing that is in five days, shoot straight for the motion to dismiss, or wait until the hearing and move to dismiss?

Share this post


Link to post
Share on other sites

Unfortunately judges have seen enough of these cases to know that the plaintiff didn't just fabricate the case out pieces of paper found in a dumpster. When people go in to court and try to defend these things like they are murder cases, the judge tends to wait a few seconds and then ask if it's your name and address on the mountain of statements that the plaintiff will present and then rule in their favor. 

It could be a good experience, as a law student, to see why there are so few consumer attorneys, and why those that still exist don't bother fighting these case, but suggest bankruptcy. 

Share this post


Link to post
Share on other sites
On 2/23/2020 at 4:11 PM, MsKA said:

Should I go ahead and file a motion to compel ahead of the hearing that is in five days, shoot straight for the motion to dismiss, or wait until the hearing and move to dismiss?

I don't disagree with anything @Goody_Ouchless said but if you are going to go down at least go down swinging.

If it were me in this situation I would not do the MTC the discovery.  I would not want them proving their case.  I would wait until the hearing and object to anything they want to use at trial that they failed to disclose in discovery.  The rules of civil procedure apply to them as well as you.  If the Judge upholds those rules and the law their evidence should be excluded.  Without that what case do they have beyond saying they believe you owe them?  THEN I would ask for dismissal with prejudice.  More than likely the Judge will make it without and force them to refile and comply with discovery.

If there is ANY opportunity prior to the hearing for you to attempt to settle (many courts do this hallway meeting) THAT is when I would stand up to the lawyer and offer a mutual walkaway in that they dismiss with prejudice and you won't bring up any counter claims.  They do not need to know you don't have any and my answer would be "I will not reveal my trial strategy now but you failed to comply with discovery and I will oppose anything you intend to use for that reason." etc.  Once they realize you won't fold easily they might just drop it.  They are after the easy default judgment not having to prove their case.

It might work.  It might fail.  Same result if it fails vs. having a full trial and losing or a default judgment.

 

Share this post


Link to post
Share on other sites

All true - the only caveat, from a practical perspective, is that case from, I believe, Massachusetts, where someone refused to take the "hallway offer" and insisted on presenting a "defense." At the end of the day, all of the people that accepted settlements got relatively generous terms. When Our Hero went up and asked for same deal, the plaintiff's lawyer said to her "oh, no. You decided to be difficult so we will now aggressively pursue the full amount of our judgement." They are not all that vindictive, but there is precedent.

 

Share this post


Link to post
Share on other sites
57 minutes ago, Clydesmom said:

If it were me in this situation I would not do the MTC the discovery.  I would not want them proving their case.  I would wait until the hearing and object to anything they want to use at trial that they failed to disclose in discovery.  The rules of civil procedure apply to them as well as you.  If the Judge upholds those rules and the law their evidence should be excluded.  Without that what case do they have beyond saying they believe you owe them?  THEN I would ask for dismissal with prejudice.  More than likely the Judge will make it without and force them to refile and comply with discovery.

Thanks, ya'll.

I was thinking the same thing, @Clydesmom. If I file a MTC, that gives them the opportunity to come up with the evidences they should have already produced. I was reading a little further into OK Rules of Civ Pro this morning, and Rule 13 specifies that a filed complaint must include a statement/reference made to any evidentiary materials pertinent to the motion, as well as a copy of said materials to be relied upon attached to the complaint when filed. Plaintiff's attorney failed to reference anything or attach any copies of such to their original filed complaint, and has subsequently failed to produce anything in discovery. I figured that may help a bit, as well? 

@Goody_Ouchless I am hoping these folks are in less of an attack-mode. From what I have gathered thus far, looking up records for my county in the last year, they've filed (robo-signed) upwards of 60 cases. Of those that have closed, about 40 of them received default judgements for lack of response from the defendant, and only 3 actually went as far as a pre-trial hearing - and in all three, Plaintiff failed to appear and the case was dismissed without prejudice. I've noted the Rule that allows for the court to dismiss in this circumstance so that, should this be the case, I can move to dismiss.

Thanks again for the insight.

Share this post


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

only 3 actually went as far as a pre-trial hearing - and in all three, Plaintiff failed to appear and the case was dismissed without prejudice.

This is good. Maybe they only deal with defaults, or were having staffing difficulties.

The evolution of this is interesting. When we were first sued, almost 10 years ago, it was near the end of the era when they would sue with no (or false) evidence. Consumer Lawyers could win because it was still possible to compel the production of live witnesses - often from every link in the chain. By the time of our last suit, around 2014, plaintiff's had all the evidence they needed and adoptive business records statutes made these cases impossible to defend (no need for witnesses) - plaintiffs were aggressive to the point where one wouldn't fold, even after we hit them with a valid FDCPA claim. Within the last three or four years things have changed again - some of the large, skilled aggressive collections law firms have either closed or gotten out of the industry. Now we do see more cases of them either not showing up, or folding in the face of resistance - although that could be due to staffing or case load, as we have seen some cases that were dismissed without prejudice being refiled, which never used to happen.

  

Share this post


Link to post
Share on other sites
40 minutes ago, Goody_Ouchless said:

This is good. Maybe they only deal with defaults, or were having staffing difficulties.

The evolution of this is interesting.   

I am hoping it works in my favor, for sure. I was assuming they just didn't want to waste the time and money going after smaller amounts when there are more lucrative ones to go after. 

It is interesting how the tables have turned. There was a secondary case they had filed, but the same week I received the summons I also received a notice of dismissal of the same - before I even had time to file an answer. These 2 complaints were filed within two weeks of each other, so I had been wondering if my resistance on the first discouraged them from moving forward with the second. I'm still on guard for a refile, though. 

Share this post


Link to post
Share on other sites

I'm thinking these voluntary dismissals are the result of courts pushing back on them filing tons of suits and then not showing up for their own cases. This type of law is the bottom of the barrel, so they probably lose lawyers as fast as they can hire them.

We saw a period in Texas where it seemed like every case that was answered was dismissed, yet in the midst of it we'd see stuff like them putting a ton of energy into arguing against someone's MTC Arbitration. Staffing and Scheduling probably have more to do with it than anything.

Share this post


Link to post
Share on other sites
19 minutes ago, Goody_Ouchless said:

This type of law is the bottom of the barrel, so they probably lose lawyers as fast as they can hire them.

I looked up the attorney listed on my case. He's worked for 4 different firms since he's been licensed, none longer than about 2 years. 

You are probably correct. Whatever the reason, I will take whatever works to my advantage right now. If all else fails, I believe I would be deemed judgement proof as my only income is child support and I cannot work due to circumstances requiring me to stay home and care for my disabled child. I'm aware that the court will not rule based on emotional pleas but logistically - they can't squeeze blood from a stone.

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.