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

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.

FACTUAL ALLEGATIONS

All Defendants

LITIGATION MISCONDUCT – FDCPA

Plaintiff realleges and incorporates all previous paragraphs as if fully set out herein.

On June 11, 2012 Defendant Barry Bursey filed a lawsuit against me in Kingman justice court on behalf of Defendant Midland for a charged off HSBC credit card after the statute of limitation had expired.

I contacted every Arizona attorney listed at the National Association of Consumer Advocates website (naca.net), but they were all located in the Phoenix / Tucson area, declined to represent me in Mohave County and I had no choice but to represent myself.

The 3-year Arizona statute of limitations for revolving accounts without written agreement had expired prior to the filing of their lawsuit against me and I advised the Defendants accordingly.

However, the Defendants were determined to obtain a judgment against me under the 6-year statute of limitations for accounts with a written agreement and they presented an unreadable Card Member Agreement as “written agreement” to the justice court.

After computer enhancement, this Card Member Agreement turned out to be a GENERIC sample “Household Bank” (not HSBC) agreement not applicable to ANY account.

Apparently the Defendants copied this generic agreement until it was no longer readable so they could submit it to the court as “written agreement” against unrepresented consumers like me.

Most and possibly all filings in the justice court case were signed by Defendant Bursey & Associates’ attorneys Barry Bursey, Monica Derrick and Jason LeRoy.

Throughout the litigation in justice court, the Defendants ignored court rules and orders, they made numerous false statements to me and to the court, demanded interest they were not entitled to and engaged in extremely unfair and deceptive practices, including, but not limited to the examples described below.

My July 13, 2012 affirmative defenses included that Midland’s claim was barred by the statute of limitations.

My July 13, 3012 requests for admission to Midland contained notice that the 3-year statute of limitations applied to the alleged debt.

On September 25, 2012 the justice court ordered the parties to participate in mandatory mediation scheduled for October 16, 2012, but Midland ignored the court’s order and failed to attend the mediation hearing.

Defendant attorney Monica Derrick appeared telephonically for Midland at the mediation hearing and she also ignored the justice court’s mediation order:

… Witnesses and attorneys may be allowed in the mediation process but are not required. During the hearing, an attending attorney will not be permitted to question the other party and may only speak to their client. These limitations are placed to insure that neither party has an unfair advantage and to encourage both parties to arrive at a joint resolution of the dispute. …. [emphasis added]

Attorney Derrick spoke to the mediator, she misrepresented the debt, falsely claimed that it was based on a “written agreement” and I told her that they had failed to respond to my July 13, 2012 discovery requests. She was rude and threatening, attempting to intimidate me into paying this time-barred debt.

The next day, on October 17, 2012, long after the 30 days to respond had expired, the Defendants finally responded to my requests for admission.

My request # 11:

Plaintiff admits that prior to the 2011 amendment of A.R.S. 12-548 the Arizona statute of limitations for open accounts without written agreements was 3 years.

The Midland response:

Objection. Plaintiff objects to the request as a legal conclusion and seeking information that is not relevant.  Notwithstanding, and subject to the objection, Plaintiff admits.

On October 18, 2012 Defendant Bursey submitted supplemental disclosures without obtaining leave of court less than 60 days prior to the scheduled trial hearing scheduled for 11/26/12 in violation of ARCP Rule 37(c).

The supplemental disclosure was an unauthenticated HSBC credit card statement dated 1/4/09, indicating that the account became delinquent about 6 months earlier and that the statute of limitations had expired.

On October 29, 2012 I emailed to attorney Derrick:

Dear Ms. Derrick,

As I previously advised in writing, I do not receive mail at my residence and I get my mail in Kingman (60 miles away) every few weeks.

I just received your motion to dismiss.  Could you please email or fax future filings to me?

Thank you,
Christine Baker

I did not receive a response from attorney Derrick and ignoring communications from a pro se defendant in a debt collection action is an unfair and abusive practice.

On November 10, 2012 I filed my motion for leave to amend my answer, affirmative defenses and counterclaims and I attached the redlined version of the proposed filing. My counterclaims included that Midland’s claim was time-barred.

On November 17, 2012 Bursey & Associates employee Defendant Gina Scalese emailed her promise to send me the Bursey & Associates filings by email:

… I saw somewhere in our notes that you prefer e-mail so that’s the way I’ll send you any documents that we file …

We agreed to serve our filings by email.

While I subsequently emailed all my filings to Ms. Scalese, she failed to email the Bursey & Associates filings, causing confusion and enormous stress, as I had very little time to respond to their motions.

A trip to Kingman to get my mail cost me about $40 in gasoline and I therefore get my mail only every few weeks.

Ms. Scalese failed to email the Midland “Response to Motion to Amend Counterclaims and Objection to Motion for Joinder” and I had only 5 days to work on my reply during an extremely busy week after receiving the snail mailed documents on 12/5/12. The timely filing of my reply required a special 60 mile trip to the court in Kingman on 12/10/2012 and the justice court subsequently denied my motion.

Despite my numerous notices to the Defendants that the statute of limitations for the alleged debt had expired, the Defendants filed a motion for summary judgment on November 21, 2012.

On December 31, 2012, after working over Christmas on my opposition instead of celebrating the holidays and getting some rest, I filed my response, motion to strike and cross-motion for summary judgment.

On January 14, 2013 Midland requested additional time to respond:

Plaintiff, through undersigned counsel, respectfully requests additional time to respond to Defendant’s pending Motion to Strike and to reply to Defendant’s Response to Plaintiff’s Motion for Summary Judgment.  Plaintiff requires additional time to review these pleadings and to obtain addition documentation to the Court and Defendant. …

The justice court granted the extension, but Midland failed to respond and it failed to provide any additional documentation.

On February 25, 2013 the court granted my motion for summary judgment because the statute of limitations had expired.  Midland did not appeal.

Throughout the justice court litigation the Defendants submitted blatantly false statements to the court and/or to me on numerous occasions and they engaged in unfair and deceptive practices to obtain a judgment against me — by any means and without any regard for ethics and rules and in violation of the FDCPA.

Midland Funding LLC and Midland Credit Management, Inc.

CREDIT REPORTING – FCRA & FDCPA

Plaintiff realleges and incorporates all previous paragraphs as if fully set out herein.

Defendant Midland Funding provided false and misleading account information to credit bureau Trans Union and Defendant MCM provided false and misleading account information to credit bureau Equifax.

MCM reported one account to credit bureau Equifax with the incorrect “date of first delinquency: 1/2009”

This false reporting of the more recent default lowered my credit scores and creditworthiness when I needed it most, as I had no way to earn a living when the bankers caused the 2008 depression. It was a cold winter in my unfinished house, 60 miles from the nearest town, with an old truck that got less than 10 mpg.

MCM reported two HSBC accounts to the credit bureaus with incorrect balances, including interest for the time prior to its ownership of the accounts and interest charges abandoned by Midland in its motion for summary judgment in justice court.

Despite active litigation and countless notices of their incorrect credit reporting, the Midland Defendants not only continued to report incorrect account data to the credit bureaus, but they VERIFIED the incorrect data with the credit bureaus.

On September 13, 2013, Equifax notified me that MCM VERIFIED the incorrect date of last activity (re-aging) in violation of the FCRA § 1681s-2.

The reported balances included interest for time prior to Midland’s ownership of the accounts and interest waived in its motion for summary judgment in state court.

The MCM reporting of the account with the false first delinquency in “1/09” and the incorrect balances violates FDCPA § 1692e(2), 1692e(8) and 1692f(1) and the verification of the incorrect data in response to my credit disputes with Equifax violates FCRA § 1681s-2.

On 6/20/14 and 6/25/14 MCM sent letters to me indicating that it refused to investigate my subsequent factual disputes with Equifax.

On 6/23/14, credit bureau Trans Union notified me that Midland Funding had also verified the incorrect balances including interest prior to its purchase of the accounts and the interest waived in justice court and it also re-aged one account.

The Midland Defendants violated FDCPA § 1692e(8) and the FCRA.

MCM and John Doe

FDCPA

Plaintiff realleges and incorporates all previous paragraphs as if fully set out herein.

On or about November 2, 2012 Defendant John Doe called me on behalf of MCM to “have a word” with me because he was asked to make a decision about an HSBC Ameritech Prime credit card debt “today”.

I advised the MCM collector that I have never had an Ameritech Prime credit card and I suggested that he send me a letter with more information about the account. He responded that he would end the call only if the last 4 digits of my social security number were different from his records and he continued to demand verification of the last 4 digits of my social security number until I hung up.

Defendant John Doe failed to advise me that he was a debt collector attempting to collect a debt and that any information obtained would be used for that purpose in violation of FDCPA §1692e.

Defendant MCM failed to comply with FDCPA §1692g as I never received any information about this alleged debt.

The above specific examples show the extent of the Defendants’ contempt for consumer protection laws such as the FCRA and FDCPA.

Not only did I incur many expenses and I wasted half a year on defending against the Defendants’ time-barred lawsuit, but it has been extremely stressful to have the Defendants ignore me, lie to me, not email filings as promised, violate court mediation rules and orders and report and verify false information to the credit bureaus despite the ongoing litigation.

The Defendants’ misconduct caused enormous emotional distress and mental anguish in violation of FDCPA §1692d – harassment or abuse, FDCPA §1692e – false or misleading representations and FDCPA §1692f – unfair practices.

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