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Judgment

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Valued Member

Re: Judgment

It's not the OC it's a CA. Midland Credit Management. I heard they're difficult to deal with.

Message 11 of 20
Senior Contributor

Re: Judgment


@cara415 wrote:

It's not the OC it's a CA. Midland Credit Management. I heard they're difficult to deal with.


If it's the CA, they can sue you but at the same time they are required to send you the mini-Miranda.  Failure to do so is a violation of the FDCPA.

 

While I do not think that in and of itself is cause to have the judgment vacated, you can sue them for FDCPA violations.  At the same time, I would have the judgment re-opened on the basis of possible defect in service.  I would urge the court to dismiss the cause with prejudice since the creditor was willfully negligent in attempting to serve process on you. 

 

I think you have a good chance at getting the judgment vacated and getting a couple of grand from the CA for being scumbags.

IAALBNYL
Message 12 of 20
Valued Member

Re: Judgment

I've never spoke to or recieved anything about this suit so I'm definitely going to use the "mini-Miranda" defense. Thanks for your help guys! I'll keep you updated. Smiley Wink

Message 13 of 20
Legendary Contributor

Re: Judgment

If I have the facts straight......

You had a debt with an OC.  You were never advised that they assigned or sold the debt to a CA, and no CA reported to your CR before posting of the legal judgment.

Is that correct?

If that is the scenario, I see no FDCPA violation.  The CA had no initial communication with you prior to bringing legal action, so the dunning notice requirements of FDCPA 809(a) dont apply.  FDCPA 809(d) specifically states that communicastions relating to civil action are not to be treated as an "initial communication with the consumer," and thus invoke no violation of your service of notice of rights under FDCPA 809(a). I see no "mini-miranda" defense of improper dunning notice.

Their bringing of legal action opens up the full discovery process of the court, which is your alternative to the administrative DV process of FDCPA 809(b), so you suffered no denial of validation prior to trial.

Your beef appears only to be one of proper service of notice to you at a recognized contact address prior to trial, thus depriving you or exercising your pre-trial discovery validation of the debt, and your ability to show up in court and assert an SOL defense.  That is a matter of proper, legal  court service that you should take up with the court.

It really doesnt matter whether the SOL had expired or not prior to their legal action.  SOL is an affirmative defense that you must show up in court and assert.  If they obtained default judgment, your SOL defense is gone.

 

 

Message 14 of 20
Senior Contributor

Re: Judgment


@RobertEG wrote:

If I have the facts straight......

You had a debt with an OC.  You were never advised that they assigned or sold the debt to a CA, and no CA reported to your CR before posting of the legal judgment.

Is that correct?

If that is the scenario, I see no FDCPA violation.  The CA had no initial communication with you prior to bringing legal action, so the dunning notice requirements of FDCPA 809(a) dont apply.  FDCPA 809(d) specifically states that communicastions relating to civil action are not to be treated as an "initial communication with the consumer," and thus invoke no violation of your service of notice of rights under FDCPA 809(a). I see no "mini-miranda" defense of improper dunning notice.

Their bringing of legal action opens up the full discovery process of the court, which is your alternative to the administrative DV process of FDCPA 809(b), so you suffered no denial of validation prior to trial.

Your beef appears only to be one of proper service of notice to you at a recognized contact address prior to trial, thus depriving you or exercising your pre-trial discovery validation of the debt, and your ability to show up in court and assert an SOL defense.  That is a matter of proper, legal  court service that you should take up with the court.

It really doesnt matter whether the SOL had expired or not prior to their legal action.  SOL is an affirmative defense that you must show up in court and assert.  If they obtained default judgment, your SOL defense is gone.

 

 


In one of the more recent cases decided by the Federal Appeals Courts, apparently the little sentence about legal notice not being an "initial communication" has apparently been struck down.

 

I believe it was Guerrero where the appeals courts decided that a summons & complaint is an initial communication and thus the mini-Miranda is a strict requirement either on the summons & complaint itself or on a separate notification.

IAALBNYL
Message 15 of 20
Legendary Contributor

Re: Judgment

Yes, I agree,  If not included in the initial complaint, it must be provided thereafter by counsel in the legal proceeding.  But what this did NOT rule was that any lack of dunning notice PRIOR to the commencement of legal action was a violation of FDCPA 809(a).

I know of absolutely no legal precedent that says that a creditor cannot bring legal action without first providing an initial communication/dunnig notice under FDCPA 809)a) prior to commencement of legal action.  No Fed Appeals Ct, short of the Supreme Court,  can "srtike down" the specific language of FDCPA 809(b).

It is simply something to deal with in pre-trial motions on appeal, and not a retroactive claim of violation of the FDCPA.

 

Message 16 of 20
Senior Contributor

Re: Judgment


@RobertEG wrote:

Yes, I agree,  If not included in the initial complaint, it must be provided thereafter by counsel in the legal proceeding.  But what this did NOT rule was that any lack of dunning notice PRIOR to the commencement of legal action was a violation of FDCPA 809(a).

I know of absolutely no legal precedent that says that a creditor cannot bring legal action without first providing an initial communication/dunnig notice under FDCPA 809)a) prior to commencement of legal action.  No Fed Appeals Ct, short of the Supreme Court,  can "srtike down" the specific language of FDCPA 809(b).

It is simply something to deal with in pre-trial motions on appeal, and not a retroactive claim of violation of the FDCPA.

 


 

Just to set the record straight, it is Goldman vs. Cohen, 445 F.3d 152 (2006).

 

There are at least two other Federal Courts of Appeals who have stated the same.  One, the 11th, has stated the opposite.

 

And, just FYI, even a lowly District Court can strike down virtually anything Congress passes. 

 

 

IAALBNYL
Message 17 of 20
Senior Contributor

Re: Judgment


@O6 wrote:

@RobertEG wrote:

Yes, I agree,  If not included in the initial complaint, it must be provided thereafter by counsel in the legal proceeding.  But what this did NOT rule was that any lack of dunning notice PRIOR to the commencement of legal action was a violation of FDCPA 809(a).

I know of absolutely no legal precedent that says that a creditor cannot bring legal action without first providing an initial communication/dunnig notice under FDCPA 809)a) prior to commencement of legal action.  No Fed Appeals Ct, short of the Supreme Court,  can "srtike down" the specific language of FDCPA 809(b).

It is simply something to deal with in pre-trial motions on appeal, and not a retroactive claim of violation of the FDCPA.

 


 

Just to set the record straight, it is Goldman vs. Cohen, 445 F.3d 152 (2006).

 

There are at least two other Federal Courts of Appeals who have stated the same.  One, the 11th, has stated the opposite.

 

And, just FYI, even a lowly District Court can strike down virtually anything Congress passes. 

 

 


Pub. L. No. 109--351, which established legal action not to be an initial communication, was enacted AFTER Goldman vs. Cohen.  Still, the language in § 809 (d) states "formal pleadings" and a summons (as must be served together with any formal complaint) is not a formal pleading.  It is further understood by courts that a summons is a "communication" regarding a debt. 

 

There is an abundance of misunderstanding even after § 809 (d) and courts will generally not hold that filing of legal action nullifies the requirement for min-Miranda and DV.  While a CA can bring legal action, they cannot do so while a timely DV request remains unfulfilled.  Also, when the CA commences the legal action, they must include the mini-Miranda notice either on the face of the summons or notice to appear or in a separate notice within 5 days.  Failure to do so is an actionable violation of the FDCPA.  If the debtor then requests DV during the following 30 days, the creditor cannot continue with any legal action pending compliance.

 

Also, the CA has to take extreme caution in making sure that the mini-Miranda is not in any way confusing to the debtor in relation to the notice on any legal documents served upon the debtor which indicate a court-imposed timeframe to answer or reply.  The "unsophisticated consumer" test is especially onerous for CAs.  Many are those who have followed the intent of the law and been slapped with damages nonetheless because of FDCPA damages and the "unsophisticated consumer" test.

IAALBNYL
Message 18 of 20
New Member

Re: Judgment

Hi... I had a very similiar experience with Midland - actually with one of it's subsidiaries "LVNV Funding". I gave up on a credit card when I lived in Las Vegas, Nevada in 2000. In 2007 I got a letter from some attorney in Denver demanding payment for the default judgment they had supposedly gotten against me in 2003 ( ! )- with many thousands in interest and attorneys fees added on of course. Seeing as how I had never been served anything whatsoever or recieved even a letter from LVNV funding or Midland about any lawsuit, I couldnt imagine how a lawsuit could have proceeded against me without my knowledge or how there could be a judgment against me. I just assumed that I had a right to be served and that it would be impossible for them to get a judgment against me without me even being informed of the court proceedings against me... WRONG!..... Apparently Midland served some guy in Fort Collins Colorado whose only similiarity to me isthat he happened to have my same last name ( and a completely different first and middle name). We are also different ages, hair color, and different races- he is black, I am white. Midland literally served this guy with a different name than mine, at an address at which I had never resided, in a city where I have never even lived. ( I did drive through it once! ) Midland swore under oath on the summons that it was true and accurate information about me, and the Larimer County Sherrif's deputy - a Ms. Karen Mianecki- who served this BS summons to this random guy lied under oath in a sworn affidavit to the court when she turned in her paperwork that she had verified his/ my identity and had personally served ME with my summons to appear. Midland blatantly lied under oath when they filled out the summons with a bunch of bogus information, and the deputy who claimed to have served me also lied under oath. So they got a default judgment against me! Bottom line is that Midland gets away with this crap all the time. They just serve anybody they feel like, get a default judgment, and then years later when the person who was never actually served finds out about it, Midland just says "oops!" and proceeds to sue you even after the statute is expired on the basis that they made good faith efforts to try and serve you within the statutory period....Anyways, in my case,  I traveled in person to Loveland/Fort Collins Colorado and tracked down this deputy who claims to have served me- total bullsh!t. Bottom line, she admitted to me and to the court that she never actually checked the guy's id and she had just assumed that Midland had the right info on the summons because she had served the guy papers before. I petitioned the court to vacate the judgement and the judge did vacate it, BUT he refused to dismiss the case on statute-of-limitations grounds because the creditor- according to him at least - had "TRIED" to serve me with the statute's timeframe. My argument was that they just served some random guy at some random address, and that serving anybody you feel like serving is NOT sufficient to protect their right to still sue me 7 years after the fact. But the judge wasnt having it, so I settled for a thousand bucks to avoid getting sued  . The whole situation still infuriates me! Banks and credit card companies will hold you to every single letter of the law and apparently THEIR rights have to be respected, but MY rights under the law were simply set aside because the judge basically felt like it. In your case,  If you were not properly served, and you can prove it, you'll probably be able to get the judgment vacated as I did, but the fact that you were not served during the statutory period may not prevent the courts from allowing a new lawsuit to go forward if the creditor can convince the judge that they "tried " to serve you. It isnt legal strictly speaking, it isnt fair, and if you want to spend the next twenty years and your life savings appealing it to the Supreme Court, you would probably win, but is it worth the effort and money to do that? . If the law was followed it would prevent such a lawsuit, but as I found out, the law only is enforced strictly when it helps the collection agencies and the banks. When strict interpretation of the law works in favor of the little guy, apparently the law is really more of a "guidline" or a "suggestion" than it is a set of rules that has to be applied to everybody equally. I noticed in a later comment you stated that Midland is known for being difficult to work with. I have news for you- they are literally the spawn of satan. Pure evil. You will come to hate them as I do, with all your heart. Good luck to you. Get your judgment thrown out and then settle before thay can refile is my advice.

Message 19 of 20
Valued Member

Re: Judgment

Yikes! That's terrible. I really hope my experience isn't like that. This isn't over thousands of dollars. it's over a stupid Ballys gym membership that I got ripped off on in the first place. I know that's irrelevant. Well I have a laywer in the family so hopefully that helps.

Message 20 of 20
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