Fighting Midland Funding & Bursey & Associates since 2013 in federal court pro se!

Wahl v Midland Credit Management (MCM) — Midland illegal interest charges

Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643 (7th Cir. 2009).

Because of interest and late fees, a debt of less than $70 ballooned to over $1000 by the time a bad debt buyer purchased it. The buyer stated that the balance it bought was “principal” and added its own interest thereafter. The plaintiff had to show both that the statement was false, and that it would mislead the unsophisticated consumer. From the perspective of the debt buyer, the interest charged by the original creditor was very much part of the principal. Defendant obtained the entire debt, including interest, presumably for pennies on the dollar; so the starting or original amount owed, as far as it was concerned, was full amount of the debt. The amount of the debt from the collector’s perspective was what it was seeking. This would not be technically false or deceptive to the consumer.

———————————————

Very relevant. Midland added interest from the time of charge-off — NOT from the time when it purchased my accounts.

CRIMINALS!

Not only is this one more reason to have ALL Midland judgments vacated, but the FDCPA needs to be enhanced to state that collectors MUST provide the interest rate and the time period they charged interest.

I’ve seen a decision stating that the collector does NOT need to disclose the interest rate — totally crazy!

I’m going to look for people with Midland judgments, settlements and even open accounts, although it is impossible to determine what the DATES interest was charged for from their collection letter — which is WHY the FDCPA has to be updated.

The consumer lawyers totally failed us again.

I can’t wait for discovery or whatever is next!

Encore Capital Group “ECPG” 2018 SEC K-10

The 2018 Encore Capital Group (Midland Funding and MCM parent company) 10-K filing is quite interesting.

From http://investors.encorecapital.com/node/16071/html

Legal Action. We generally refer accounts for legal action where the consumer has not responded to our direct mail efforts or our calls and it appears the consumer is able, but unwilling, to pay their obligations. When we decide to pursue legal action, we place the account into our internal legal channel or refer them to our network of retained law firms. If placed to our internal legal channel, attorneys in that channel will evaluate the accounts and make the final determination whether to pursue legal action. If referred to our network of retained law firms, we rely on our law firms’ expertise with respect to applicable debt collection laws to evaluate the accounts placed in that channel in order to make the decision about whether or not to pursue collection litigation. Prior to engaging an external law firm (and throughout our engagement of any external law firm), we monitor and evaluate the firm’s compliance with consumer credit laws and regulations, operations, financial condition, and experience, among other key criteria. The law firms we hire may also attempt to communicate with the consumers in an attempt to collect their debts prior to initiating litigation. We pay these law firms a contingent fee based on amounts they collect on our behalf. [emphasis added]

However, I haven’t found a Midland lawsuit in Arizona since 2013. What’s going on?

“Prior to engaging an external law firm (and throughout our engagement of any external law firm), we monitor and evaluate the firm’s compliance with consumer credit laws and regulations, operations, financial condition, and experience, among other key criteria.”

That’s VERY interesting, need to find out through discovery how hey evaluated the Bursey & Assciates “compliance.”

Risks Related to Our Business and Industry

Financial and economic conditions affect the ability of consumers to pay their obligations, which could harm our financial results.

Economic conditions globally and locally directly affect unemployment, credit availability, and real estate values. Adverse conditions, economic changes, and financial disruptions place financial pressure on the consumer, which may reduce our ability to collect on our consumer receivable portfolios and may adversely affect the value of our consumer receivable portfolios. Further, increased financial pressures on the financially distressed consumer may result in additional regulatory requirements or restrictions on our operations and increased litigation filed against us. These conditions could increase our costs and harm our business, financial condition, and operating results. [emphasis added]

I have the PERFECT case to get legislators to FINALLY enhance the FDCPA and bring it up to current standards.

I’ll never forget Elizabeth Warren’s outrage over debt collection abuse before she became a senator and with some luck, we might have a chance of getting FDCPA enhancements after next year’s election. There are SO many conflicting and truly bizarre decisions, it’s about time that the FDCPA is amended and the $1,000 statutory damages from the 70s adjusted for inflation.

The problem is NOT what Midland and the Bursey attorneys have done to me, but that they don’t think it’s wrong. For SIX years they’ve been litigating against me, denying ANY wrong doing!

I have not yet looked into the PEOPLE running Encore / Midland, but they really ought to be in prison.

If consumers get caught stealing at Wal-Mart a few times, they’ll go to jail!

Why are these thugs at Encore / Midland NOT prosecuted for CRIMINAL fraud?

There have been so many lawsuits and regulatory actions over their robo signing and submitting inadmissible evidence in collection suits — yet they did not quit these heinous illegal practices.

Paying a few million in fines to regulators is NOTHING for them. It’s a cost of doing business just like UPS and Fed Ex pay parking tickets.

Encore income from the 2018 K-10 filed with the SEC:

The Selected Operating Data was derived from our books and records (in thousands, except per share data):

Encore Capital ECPG 2018 SEC 10-K
Encore Capital ECPG 2018 SEC 10-K

Income from continuing operations before income taxes: 156,488

Over $156 million in ONE year!

After paying over $240 million in interest!

FDCPA must be amended to ensure consumers can sue for litigation abuse

I was just looking for other cases involving collection attorneys’ misconduct at the National Consumer Law Center at  https://library.nclc.org/node/1969851 and I’m SHOCKED to see that in some states you can’t even sue for FDCPA claims arising from litigation because of the “litigation privilege.”

I think that in plain English this means that lawyers can lie, deceive, misrepresent, collect amounts not owed, sue for time barred debts, violate court rules, etc. with IMPUNITY — against mostly unrepresented and poor consumers!

It’s unbelievable what goes on in this country.

The FDCPA needs to be amended to require that collection attorneys comply with ALL provisions of the FDCPA during litigation and that any state litigation privilege is preempted.

Just like so many federal laws preempt state consumer protection laws.

 

3/26/19 my 2nd Amended Complaint against Midland, MCM, Bursey & Associates and their attorneys

I filed my 2nd amended complaint today and it’s been a LONG SEVEN years in justice court, Phoenix federal court, 9th circuit court of appeals and for the last year back in Phoenix federal court.

Below is a long excerpt from the complaint and I’m hoping that many other consumers will find this posting and file their own lawsuits against these scumbag debt collectors.

Even better, wouldn’t it be something if people cared enough to do whatever it takes to get rid of our corrupt legislators and regulators?

I’m so fired up, I’m determined to check the recent lawsuits in Kingman justice court to see the current status of debt collection litigation in Mohave County.

Why should only Illinois consumers have these illegally obtained judgments vacated?

3/26/19 2nd Amended Complaint (PDF)

From my amended complaint:

BACKGROUND

Defendant Midland Funding is the nation’s largest buyer of consumer debts and it purchases charged off accounts from banks for pennies on the dollar. It then attempts to collect the full amount plus interest through aggressive and illegal collection tactics including lawsuits.

In countless lawsuits, class actions and regulatory actions over at least a decade, consumers and regulators litigated against the Midland Defendants for numerous violations of the FDCPA, such as robo signing of affidavits, submission of inadmissible and/or materially false documents and other unfair and deceptive practices.

In 2009, the Ohio federal court stated in Midland Funding LLC v. Brent, 644 F. Supp. 2d 961, 969 (N.D. Ohio 2009) modified on reconsideration, 308CV1434, 2009 WL 3086560 (N.D. Ohio Sept. 23, 2009):

However, this Court finds that the affidavit as a whole is both false and misleading for the aforementioned reasons and notwithstanding the fact that some of the data in it are correct. It is unclear to this Court why such a patently false affidavit would be the standard form used at a business that specialized in the legal ramifications of debt collection.

Despite millions of dollars in jury verdicts against the Midland Defendants and many settlements with regulators, they chose to continue their vile and illegal practices against unrepresented consumers and they sued me in 2012 for a charged off and time-barred HSBC credit card account without any admissible documentation.

The Midland Defendants know that consumers who defaulted on their credit cards most likely cannot afford to pay thousands of dollars for retainers to attorneys. Most Arizona judges despise consumer litigants and could not possibly care less whether debt buyers’ documents are admissible evidence.  Mohave County doesn’t have a single consumer attorney and no attorney from the Phoenix / Tucson metro area would represent me in one of America’s largest and very rural and impoverished counties.

On 12/4/18, Illinois Attorney General Lisa Madigan announced a $6 million settlement after an investigation into the Midland debt collection and litigation practices. From illinoisattorneygeneral.gov/pressroom/2018_12/2018124b.html:

… Under the settlement, Midland will completely eliminate or reduce more than 1,200 Illinois consumers’ judgment balances, a value of over $1.8 million, in cases where Midland used an affidavit against them in court between 2003 and 2009. …

As my case documents, the Midland Defendants continued their deplorable litigation practices in Arizona at least through 2012, presumably because they know that most Arizona legislators and regulators have been bribed or blackmailed by the finance industry.

This so-called justice system rarely renders justice and every single Midland debt collection suit should be audited, all judgments obtained without proper documentation should be vacated and payments made should be refunded – as in Illinois.

As the Midland litigation and settlement record shows, they are unstoppable and NOBODY ever goes to prison. In contrast, when consumers get caught shoplifting a few times, they go to jail.

The Midland Defendants are wholly owned by Encore Capital and its 2018 net income exceeded $115 million according to its 2018 SEC K-10 filing at http://investors.encorecapital.com/node/16071/html.

These insignificant settlements with regulators and the occasional jury verdict have no impact at all on Encore Capital and the Midland Defendants – it is a cost of doing business, similar to Fed Ex and UPS paying parking tickets for their delivery trucks.

Arizona and federal regulators condone the Midland Defendants’ highly organized theft of many millions of dollars from the poorest consumers.

Continue Reading

Great ruling against Portfolio Recovery

The new WordPress so sucks — NO quotes, hardly any formatting options. So this is from NCLC:

Evans v. Portfolio Recovery Assoc., 889 F.3d 337 (7th Cir. 2018). Four consumers separately disputed amount of their debts with debt buyer who reported each debt to consumer reporting agencies without noting that the amount was disputed. The Seventh Circuit first held that the consumers’ alleged violation of § 1692e(8) was sufficient to show an injury-in-fact for Article III standing purposes because of the risk of financial harm caused by an inaccurate credit rating. Upholding summary judgment for the consumers on the merits of their § 1692e(8) claims, the court affirmed that the consumers disputed the debt by including the statement “the amount reported is not accurate” in their letters. The court also concluded that failure to inform a consumer reporting agency about a debt is always material. The Seventh Circuit rejected the debt buyer’s bona fide error defense because its failure to understand that the letter raised a dispute was a mistake of law.

Appeals court remands Afewerki v. Anaya Law Group

http://www.creditandcollectionnews.com/viewer.php?url=https%3A%2F%2Fwww.bna.com%2Flawyers-face-debt-n73014463356%2F

By Chris Bruce

A federal appeals court Aug. 18 reinstated a Fair Debt Collection Practices Act suit against a law firm that misstated the principal and interest due on a credit card loan in a collection effort ( Afewerki v. Anaya Law Group , 9th Cir., 15-cv-56510, 8/18/17 ).

Although the FDCPA bars debt collectors from making false statements when collecting debts, any such false statement must be “material” — a term the FDCPA itself doesn’t define. The ruling by the U.S. Court of Appeals for the Ninth Circuit focused on that question in connection with efforts by the Anaya Law Group of Westlake Village, Calif., to collect on a debt owed by Robel Afewerki, who owed $26,916.08 on a loan with a 9.65 percent interest rate.

The Anaya Law Group sued Afewerki in state court, saying he owed $29,916.08 ($3,000 too much). The firm also misstated the interest rate, saying incorrectly that it was 9.965 percent (0.315 percent too high). Afewerki sued the firm under the FDCPA, but a district court held for the firm on summary judgment, saying the misstatements weren’t material.

Finally, the appeals court decided my case against Midland, its attorneys and Equifax and

I filed my appeal reply brief on 8/22 last year, can’t believe how long this took!

Docket Text:
FILED MEMORANDUM (MARY M. SCHROEDER, A. WALLACE TASHIMA and MILAN D. SMITH, JR.) The parties shall bear their own costs on appeal. AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED. FILED AND ENTERED JUDGMENT. [10546690] (GB)

2017-8-16–memorandum

I don’t understand AT ALL why Equifax was dismissed.

The district court did not abuse its discretion in denying Baker’s motion for a discovery extension because Baker failed to establish good cause, or that she was prejudiced by the denial.

That’s INSANE!   I was not allowed to conduct ANY discovery with Equifax, it FAILED to provide its initial disclosures and subsequently I lost my claims against Equifax.   Isn’t EVERYBODY supposed to be able to conduct discovery?  Aren’t initial disclosures MANDATORY?

This memorandum doesn’t even summarize the issues and it does not analyze the facts, but merely presents me with the decision.

I will probably pursue the discovery issue en banc because if I don’t, I won’t be allowed to do ANY discovery back in district court.

Texas jury imposed $25 million penalty against debt buyer Onwuteaka

 

 

http://www.houstonchronicle.com/news/article/Jury-imposes-25-million-in-civil-penalties-11203956.php

… A state district court jury Wednesday imposed $25 million in civil penalties against a Houston debt buyer and the companies he controls for unscrupulous collection practices that included suing people who live far from Houston and were unlikely to show up in court to defend themselves. …

I read that they already filed their appeal, and on it goes.

I’m STILL waiting for a ruling on my appeal re Midland, its attorneys and Equifax.

CFPB Debt Collection Complaint Report

It seems like we have a lot of complaints and statistics, but nothing ever changes:

CFPB Monthly Complaint Snapshot Spotlights Debt Collection Complaints

TABLE 13: MOST-COMPLAINED-ABOUT COMPANIES FOR DEBT COLLECTION
Company — 3 month average: Jul – Sep 2016 — % change vs. 3 month period last year — 3 month average — % untimely: Jul – Sep 2016

Portfolio Recovery Associates, Inc. 124.7 -8% 0%
Encore Capital Group 123.0 -34% 0%
ERC 83.0 -28% 0.4%
Citibank 77.3 12% 0%
Synchrony Financial 73.7 32% 0%
Capital One 69.0 47% 0.5%
JPMorgan Chase 65.0 31% 0.5%
Transworld Systems Inc. 62.0 -12% 0%
Convergent Resources, Inc. 49.3 21% 0%
Diversified Consultants, Inc. 48.7 30% 0.7%
Wells Fargo 42.3 76% 16%
I.C. System, Inc. 40.3 32% 0%
Bank of America 39.7 27% 0%
Navient Solutions, Inc. 39.0 19% 0%
Afni, Inc. 38.3 -8% 0%
Tenet HealthCare Corporation 37.7 122% 20%
Resurgent Capital Services L.P. 33.0 -3% 1%
Southwest Credit Systems, L.P. 32.0 146% 88%
National Credit Systems,Inc. 31.0 19% 5%
Commonwealth Financial Systems, Inc. 30.3 20% 2%
Pinnacle Credit Services, LLC 27.0 11% 0%
Barclays PLC 26.3 618% 0%
Cavalry Investments, LLC 26.0 -10% 0%
Hunter Warfield, Inc. 24.3 -3% 0%
Stellar Recovery Inc. 23.3 13% 0%
CCS Financial Services, Inc. 23.0 11% 1%
CL Holdings, LLC 21.0 11% 0%
Discover 20.0 43% 0%
The CMI Group, Inc. 19.0 30% 0%
Debt Recovery Solutions, LLC 18.3 67% 0%
Amex 16.3 96% 0%
EOS Holdings, Inc. 16.3 -40% 0%
I.Q. Data International, Inc. 16.3 53% 0%
ProCollect, Inc 16.3 36% 2%
The CBE Group, Inc. 16.3 -34% 0%

You can submit your complaint online at www.consumerfinance.gov/complaint/

Credit scores utilize phone data to determine risk

From No Credit History? No Problem. Lenders Are Looking at Your Phone Data

… FICO’s partner EFL sends psychological questionnaires of about 60 questions to potential borrowers’ mobile phones. With Lenddo’s technology, FICO can check if users’ phones were physically present at their stated home or work address, and if they are in touch with other good borrowers — or with people with long histories of fooling lenders.

“We see this as a good opportunity to explore that type of data for risk assessment, as a viable means of extending financial inclusion,” David Shellenberger, a senior director at FICO, said in an interview.

“Financial inclusion?”   Debt. Interest. Fees. Stress.

… By checking phone records to see if a credit applicant associates with people with a poor track record of repaying loans, for example, lenders risk practicing discrimination on people living in disadvantaged neighborhoods….

Of course. It used to be called redlining and now they don’t even have to use your zip code or a map.

And if your parents have financial problems, don’t call them!

Business opportunities: 

“50 calls for $50.  I’ll call you 25 times and you get access to my phone #, just talk to my VM for a while.  My FICO is 800+ guaranteed!”  I should put up a “buy it now” button!

… Several large phone companies contacted by Bloomberg declined to comment about whether they share data with financial institutions, and few of the startups or financial companies were willing to disclose their telecommunications partners. …

Not surprising.

… “The way you use the phone is a proxy for the way you live,” Hakim said. “We are capturing a mirror of the customer’s life.” His company collects phone data — such as whom the potential borrower is calling and how frequently — from partners like Airtel Ghana, and crunches it for customers like Equifax, as well as marketers. It scores some 100 million consumers in 10 countries each month, Hakim said. Banks typically use such assessments alongside other evaluations to decide whether to grant a loan. Cignifi always gets customers’ permission to use data, he said. …

It doesn’t sound like they get permission from the people who the customer calls.

So someone else can give permission to the phone company to provide MY call data? 

… Startups like Lenddo, Branch and Tala have collected several years’ worth of data to prove that their methods of using mobile-phone data work — and that customers flock to them for help. Started in 2011, Lenddo, for instance, spent 3 1/2 years giving out tens of thousands of loans, in the amount of $100 to $2,000, in the Philippines, Colombia and Mexico to prove out its algorithms. Its average default rate was in the single digits, CEO Richard Eldridge said in an interview.

The company stopped offering lending in 2014, and stepped into credit-related services to financial institutions and banks in early 2015. Embedded into banking mobile apps, it can collect data on users with their consent. The company’s revenue is up 150 percent from last year, Eldridge said. ….

Yup.

So depressing.

I’ll focus on baking some organic cookies and growing veggies.