Need Help in North Carolina

Get a copy of your credit report, it will have the date of last payment on the debt. Check with the county clerk to see if the summons is valid. Midland is known to be a bottom feeder. If the summons is valid, you definitely want their witness from Minnesota to appear in court. This is a lie, she can't and won't show up. Others with more knowledge will be along to help you further.

actually guest you nailed it.right on all counts,including the witness.if this isn't a legit summons hit them with a DV and C&D letters asap.both of these places,MIDLAND and MANN BRACKEN are famous bottomfeeders.

Paulmergel: This is Guest. I guess some how my login didn't work last night. Anyway I went to the court house to ask about the answer letter and they had the summons on file. So I guess it's legit. But the funny part was the clerk didn't know when I was served and had to ask me.
I told her yesterday, which at the time it was.

okay.do as the other guest advised.answer you want this wtness to be there.show up with your credit report and get it dismissed w/prejudice.this sounds like this is past the SOL.

You will need to file an answer, you want to do it as timely as you can. You will also want to motion for discovery....you make 3 copies of your own set of questions and get them court stamped..one you keep, one goes into the case file and one you send to Mann. You should ask these questions:

1. Proof that Midland is an assignee of Household.
2. The signed contract.
3. All statements of the account showing purchases and payments. ((this can determine the SOL))
4. Proof that Midland is licensed to collect in your state.
There may be more, I can't think of any at the moment.

I'm not sure about how it can have the same date..that is some mighty fast work, but since it is a legit case I wouldn't worry about that part. The one signed in ink is not the original..like I suggested you to have 3 signed copies of your side, they did the same: One for them, one for you and one for court..all signed.
Here is how you should answer:

1. agree
2. agree
3. agree
4. without sufficient evidence to agree or disagree
5. disagree ???????? Objection to affidavit as hearsay.

Make sure you talk to the court and find out how you would make sure that your objection to the affidavit is recorded, state to the court that you have the right to question the person who signed the affidavit, so they either produce her in court or the affidavit gets thrown out. You could also point out that this lady couldn't possibly have knowledge of all documents unless she was a first hand witness to your signing any contracts and for each and every purchase you are alleged to have made.

that last post was me
;)

Goldenbast: Sorry but I'm not up on this kind of stuff. What is a motion for discovery?

The first four statement you posted are for the letter of validation?
What do I do if they won't send me one?(being I already have been summoned)

The ones numbered 1-5 are for my letter of answer?

Your last paragraph.. Is this what I say to the Judge at the hearing or do I talk to the clerk?

It is too late for a validation letter now since it is going to court. Discovery is when you demand to see all those documents that you would have sent in a DV letter. You need 3 copies of it, one for the court, one for you and one you send to Mann (make sure they are court stamped). They may try to ignore your discovery demand, if they do then you file a motion to compel (it forces them to provide the documentation). If they don't have it, you immediately motion to dismiss with prejudice as they can't prove their claims.

Ok this what I understand I have do so far...

1. Get credit report. For possible SOL. My wife might have already used the yearly free one. Is there another way to get a copy free online?

2. Go to courthouse with 3 copies of answer letter. 1 for court, Mann Bracken and one for me. I should diagree with amount, date,and witiness.

3. motion for discovery with these...

1. Proof that Midland is an assignee of Household.

2. The signed contract. I take it the original not some with mann bracken letterhead.

3. All statements of the account showing purchases and payments. ((this can determine the SOL)) This was just a money loan.
4. Proof that Midland is licensed to collect in your state.

More questions to come so please bare with me :lol:

How is the motion for discovery written is there a sample form I could use?

Also same question for motion to compel.

Discovery is the phase that the case is at the present time. It is where the plaintiff and defendant request documents, send interrogatories and request for admissions, witnesses and such. After the discovery phase is over then there is a pre-trial or case management meeting to see the readiness of the case and make sure everyone has what they need. Most likely if you send them a request for production of documents, they will not respond. In my state they have 30 days plus 3 from the day they receive the request. After that I motion to compel and I think they have 15 days. After that I motion to dismiss with prejudice and the case should be thrown out and I win.

This is how I do it in my state. You can also look at the court papers you have and see if you see something slimier, it should be something like this:

Commonwealth of Massachusetts

Bristol,SS Fall River District Court
Docket # 1111cv1111

Bob Bobby
Plaintiff

V.

Bill Billy
Defendant


Defendant's First Request for Production Of Documents

The defendant hereby requests, pursuant to rule ?? of the Massachusetts Rules of Civil Procedure, that the Plaintiff produce documents hereinafter described, and permit the defendant to inspect and to copy such of them as they may desire. Compliance with this request may be made by mailing copies of such documents to the defendant????????s address, or at the office of plaintiff's attorney.

Request for production of documents

1. Provide Defendant with copies of any papers that show he agreed to pay.

2. Copy of the original signed loan agreement or credit card application. (defendant????????s contract with the original creditor establishing the debt between both parties.) This is also basic contract law.

3. Complete payment history, starting with the original creditor. (defendant needs to have proof of payment history with original Creditor, what the amount of the debt was when the creditor assigned the debt to plaintiff, and what fees/interest has been tacked on to this debt and how plaintiff determined these fees.) This requirement was established by the case Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004..

4. Identify the original creditor.

5. Provide Documentation that Plaintiff is licensed to collect in Massachusetts.

6. Provide defendant with _Plaintiff's. License numbers and Registered Agent.

7. Provide the amount that plaintiff purchased the alleged debt for from the original creditor.


8. Provide documents that show Norfolk Financial Corp is the assignee of the account in this case.




OK so this is how I would do it. You need to find out your state laws to find out what rule number it would fall under and such. If debt collectors need to be licensed in your state, you can include that request like above.

You also need to send a certificate of service. Noting the date, and how you sent the documents and that you certify that you mailed them. You don't need to sign both of these documents just initial them. send them certified mail return receipt requested. Put your name address and phone number on the bottom of the pages.

Hope this helps.

First I'd like to thank everyone for all the great help.
Now another question. What should I say if the first words out of the judge's mouth is " Is this your debt?" Now being I believe it is but I don't have any paper work should I answer like this..."Your honor being I don't have a copy of the original contract I can't answer that. I request a motion for Discovery. I hope this isn't saying that I have to get the papers..lol

Unless you are 100% sure the debt is not yours, you would say something like " I can neither confirm or deny the debt due to lack of information". You would then ask for production of documents that supports the plaintiffs claim. If they do not have them right then and there. You tell the judge the plaintiff is unprepared and you would like to motion to dismiss, with prejudice.

But yes you would ask for original contract, statements from the original creditor, checks you made out or something with your signature. If the attorney says he has an affidavit from someone at the debt collectors office, object to it and say it is hearsay. That person is not at the courthouse, most likely someone who signs an affidavit really didn't and it was probably done by a computer.

This is most of the possibilities so I hope this helps.

Now what if plaintiff has papers that I signed on original contract with Household Finance. I'm Sure Midland has jacked up the amount I owe. Should I see if they would take a lump sum for the orig. amount left that I owe? See if they would do away with fees and interest.
Also have them make up a contract agreeing to the amount I pay and some kind of written statement for them not to bother me again

I wouldn't agree to anything until they prove they are collecting the correct amount. If they do produce the proper documentation, they may settle with you, you would have to discuss it with their lawyer.

Ok now I'm getting really confused. I've been reading so much stuff day and night I'm loosing track.

Letter of answer to summons...Do I deliver my request of Discovery with my answer letter to the court clerk? or is it given to the judge during trial? I take it it has to be written up before motion of discovery so it can be ready.

At the bottom of my answer letter is 2 areas stating that I delivered copy to court with date and the other stating I delivered to plaintiff with date..I take it these both have to be the same date?

Oh my!! I'm really beginning to wonder if I can do this. I'm terrified of speaking in front of people. The lawyer is going to eat me alive.

Discovery is not a letter. As I posted earlier, Discovery is the current phase of the case. First is the serving of the summons. Then you file your answer to the summons, both a copy to the court and a copy to the attorney. Make sure you out the date and how you mailed it on the last page. Best thing to do is have it date stamped by the court. They should both be the same date but I don't think it really matters. Send it CM RRR.

The next step is Discovery phase. At some point, after the attorney receives your answer, they will most likely send you interrogatories, Production of documents and request for admissions. You will have to answer all of these questions unless it is personal information, such as your Social Security number, your bank account numbers, then you should state that it is an invasion of your privacy rights. Noone can make you give up your SS number.

You should save a copy for yourself and you have to sign them, but just initial them, they could fabricate documents and paste your signature on them. You will have to answer them in 30 days usually. These do not usually have to go to the court, just to the attorney, CM RRR also enclose a certificate of service.

When you get these you will see the format they use that you will need to type up. Send them First request for production of documents. also again enclose a certificate of service and send it CM RRR.


This is all a slow process. The only thing that makes it go by quick is if you default and don't answer. Go back to the first page for the other information I posted.


this would be centered at the top of the page but with your states name:

Commonwealth of Massachusetts
county is to the left and then whatever court goes here ****
with the docket number under it. The plaintiff V defendant goes below the county name,,etc.

You will see what I mean when they send you a request for production of documents. Just follow their format but instead it's the Defendant(you) requesting.

Hope this helps.

Thank you, now I got :lol:
Just a few more questions please.
A Certificate of service is mailed separate from the document it pertains to? Both by cm rrr.

When I receive the plaintiff''s discovery papers how would I answer if I don't have any documents? They are lost some how, we couldn't find any.

last one

number 5 on the complaint reads..
5. That the demand for said outstanding balance has been made upon defendant,but defendant has failed to pay said amount. A copy of a Affidavit in support of judgment is attached hereto as "Exhibit A" and is incorporated herein by reference.

This is how I answered

Defendant (disagree ???????? Objection to affidavit as hearsay),as to the allegation contained in paragraph 5 of Plaintiffs Complaint.

Note: "Exhibit A" states the a demand was sent to me 30 days before this affidavit.

Now...
being we don't recall any letter prior to this(If plaintiff has a green card from mail that I signed then I guess we did receive it)should I include that no demand was made, if so how would I word it? or leave it, being I'm not sure if a letter was ever sent to me. To me the way my answer reads now is I am objecting to the affidavit but not the demand part.
Or being the demand 30 days part is in the affidavit, my answer covers it as is?

Guys you have no idea how this has helped me thank you all so much. I will come back after I get the ball rolling and keep you informed on the progress.
I'm sure I'll have a lot more questions.

NO a certificate of service is sent with anything that you send to the other party. It is proof of who you sent it to, where you sent it, how you sent it and the date you sent it. initial it and send it along with your answer. If you send them a request for production of documents, you send it along with that too.


If you don't remember ever receiving a letter prior to this you can say " defendant can neither confirm nor deny ever receiving a request for payment without sufficient documentation.


If someone from the debt collection company has an affidavit saying they are familiar with the books and records of the debt and everything in this case is true you can object to that because that person is not in your state, is not at the court case. If it was the attorney who signed an affidavit confirming the debt is yours you can question the validity of the affidavit. Most likely the attorney did not type it up and has not looked at any information on the case except that maby your name, address and other personal information.

OK a little more information for you.

If the affidavit is NOT from the original creditor, object to it. ONLY the original creditor would know your complete account information. If it is the debt collector or their attorney sending an affidavit, it is almost 100% bogus and therefor object to it as hearsay and that an affidavit would have to be served from the original creditor to be truthful.

Yes the Affidavit is from a lady who claims....

1. I am employed by midland credit management,Inc.,servicer of this account on behalf of Midland funding llc
I make the statements herein based upon my personal knowledge.
Midland Funding LLC is the current owner of, and/or successor to,the Obligation sued upon.

She is in Minnesota

You know there is something funny going on at the end of the affidavit.
At the end of the affidavit is an area for a notary public to stamp and sign. The words (signature of notary) (seal of notary)
then a few lines down to the left..(seal). over to the right a place for the notary to sign.
then left side GA095
Mann Bracken
There is a non-raised notary seal where the word (seal) is,Now here is the strange part. Part of the seal is under the word (seal) I mean the ink of the seal is under the ink of the word (seal) Its like the document was notarized before it was typed up.
Maybe it's nothing but I bet I couldn't get a blank piece of paper notarized..lol

First of all that affidavit is not valid in court. It is hearsay. try to get the court to deny that as evidence of the debt as being yours.

As for the notarization, IF it was in fact notarized before the letter is typed up, that is highly illegal. You should bring that up to the judge also.

Almost all of these affidavits that these debt collectors are using now are bogus. As a matter of fact, you should call midland credit management and ask for the person who signed the affidavit. If they say she is there or ask who is calling, hang up. Call from a phone number that will not reveal who you are. You are trying to see if that person in fact exists. If that person doesn't exist, you can bring it up to the judge also, it will just make your case stronger.

What was the persons name that worked for Midland credit management? I may give a call too to find out.

As I said earlier though, only an affidavit from the original creditor is credible, but don't tell them that. Just tell them that the person who signed the affidavit is not at the court hearing and is therefor hearsay, or something like that.

Her Name is Vicky Weisz
Business address 16 McLeland Road,suite 101
Saint Cloud, Minnesstoa.

Update: I filed my answer to the court and sent a copy to Mann Bracken today. Now for some good news at least for me.After I filed and got home my daughter found a lawyer who will help me for a flat fee of $500.
The attorney has had dealings with mann bracken and Midland before. She told my daughter she loves kicking there butts in court. She can't promise me a win but just having her on my side is a big burden off me.
I meet with her Jan 6.

AHHH!! GOOD I am happy for you. At least you got your answer filed. You neither confirmed nor denied, right?

I hope she does kick their butts for you. Oh and I called midland credit and I did the dial by name and she is an employee there. But most likely like I think I mentioned, it could be an alias for someone else. The affidavit signature could be printed for thousands of affidavits. They will all look the same meaning she never looked at it.

yes,neither confirmed nor denied.
witness signed in ink pen
Now I wish I would have waited a few more days to file answer. I hope I didn't mess it up. If so maybe lawyer can make it right.

I don't know if the last post went thru but your doing good. best of luck and keep us posted.

grandparos, wondering how your case is going after meeting with an atty? I couldn't find one to help me, they all wanted HUGE hourly fees, $200 just for a consultation. Are you still working on this by yourself? If so I'd love to hear about it, I have my own case that I'm working on in NC.

Regarding your example of "Request for Production Documents"....1-3, 5-8 are not listed as requirements in the Summary of the Fair Debt Collection Practices Act (FDCPA). Is there Massachusetts state law that backs up the validity of your suggested requests. Otherwise, the debt collector is not obligated to provide this information...or bound by any law....correct. It seems after reading the FDCPA that the debt collector is only obligated under the FDCPA to provide Validation of debts as follows:

[FONT=Arial]?? 809. Validation of debts [15 USC 1692g][/FONT]
[SIZE=3] [/SIZE]
(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --
[SIZE=3] [/SIZE]
(1) the amount of the debt;
[SIZE=3] [/SIZE]
(2) the name of the creditor to whom the debt is owed;
[SIZE=3] [/SIZE]
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
[SIZE=3] [/SIZE]
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
[SIZE=3] [/SIZE]
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
[SIZE=3] [/SIZE]
(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
[SIZE=3] [/SIZE]
(c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer

The above FDCPA summary seems pretty vague...and doesn't provide me with the rights to request the specific information pertaining to the original creditor....such as original signed contract with the original creditor, monthy statements, etc..etc.

If there is Massachusetts State Law that permits this request....please let me know ...otherwise, I'm affraid my request for Discovery may be denied.

I could not find any legal proceedings or case laws....that substantiated those specific Discovery request either. I found plenty of those suggestions when I googled defending myself against debt collectors....but am curious how those Discovery request hold up in court if the Debt Collectors aren't bound by a law that obligates them to provide that information.

First off: the description you bolded is the Dunning Letter (the 1st letter you get). The only thing the FDCPA mentions for Validation is "Verification of the debt" without stating exactly *what* the law considers verification. What do *you* consider verification?

Secondly: the Process of Discover is an entirely different animal. That is a *court procedure* and has nothing to do with the FDCPA. Most people do not know to file a Motion for Discovery so that is why you don't see much about it. In criminal proceedings it's almost automatic, but apparently most people who go to civil court represent themselves and so really have no idea of court procedure - and that is why so many of them lose.

In other words, if they are suing you, you file a Motion for Discovery with the Court as part of your Defense.