Misnamed the doc, Equifax’s msj was also granted in that order. I already uploaded most other relevant filings and will organize them on a separate page when I have some spare time.
Misnamed the doc, Equifax’s msj was also granted in that order. I already uploaded most other relevant filings and will organize them on a separate page when I have some spare time.
I’m sorry I haven’t posted in so long, but I’ve been extremely busy.
Last September the Phoenix district court dismissed ALL my claims against Equifax and Midland Funding / MCM.
I appealed and last night I filed my informal opening brief:
After two weeks of doing not much else but read the orders and filings and doing a ton of research, my brain is fried and I have to attend to the gardens for a few days.
However, having to relive how I got railroaded in kangaroo court motivated me very much to update and post here again.
It’s incredibly that Equifax stepped up to defend Midland / MCM to get an obviously unjust dismissal.
The lies, the deceit … it’s so hard to find justice in the courts because the judges ACTIVELY encourage the most deplorable practices such as Midland claiming that I failed to respond to their motion for judgment on the pleading re. my FDCPA claims when I had in fact THREE more days to reply. Judge Campbell couldn’t have cared less …
My case was reassigned to judge Logan and he refused to extend the discovery deadlines even though none of the defendants objected (I attached their emails).
I NEVER got to see the Equifax initial disclosures and had LESS than 3 months from the Equifax and Midland/MCM answers to my amended complaint until discovery closed.
It’s so unfortunate that ALL we can do is appeal. I ran across several FDCPA and FCRA cases in Arizona and it’s depressing to read those rulings.
A key issue with Midland / MCM is that they charged interest PRIOR to its ownership of the accounts.
When they sued me in justice court, I argued that it was an FDCPA violation to charge “pre-ownership” interest for my HSBC accounts (HSBC did not add interest to the accounts after they charged off). So they “waived” all “prejudgment” interest in their motion for summary judgment to get a dismissal of my FDCPA claims.
Then they continued to report this “waived” interest to the credit bureaus and verified after my disputes in 2013 AFTER I sued them! The nerve …
Most people with credit cards have received credits for late fees, over limit fees and interest due to whatever issues. Imagine the uproar if the banks later ADDED these charges again!
If anyone has relevant case law regarding such a situation, please let me know!
The FCC’s 6/11/15 certified letter to PayPal makes it clear that PayPal’s plan to exempt itself from the Telephone Consumer Protection Act violates the law. This is rather timely as I’m getting ready to sue a collector who called my cell phone repeatedly for another person’s debt and I certainly did not consent to calls to my cell.
Here’s the letter: Continue Reading
My last post was about overdraft credit lines. But what about checking accounts?
I would think so since banks often PAY checks even with insufficient funds and therefore they extend credit (since they expect to get paid back.)
Is there any case law?
I would argue that the 3 year statute of limitations applies.
A reader asked about the statute of limitations for an overdraft credit line tied to a checking account.
From my Midland Funding cross-motion for summary judgment in Arizona justice court regarding a CREDIT CARD, posted at the Litigation Forum:
- Midland‘s Claim Is Time Barred.
The Arizona legislature changed the statute of limitations for credit cards from 3 to 6 years in 2011. The new law became effective on 7/20/11. [DSOF 4] Therefore, the 3-year statute of limitations applies to the alleged debt as it was not subject to a written agreement [DSOF 5] and all my credit card accounts were “open” accounts:
ARS 12-543 Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation
There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:
- For debt where the indebtedness is not evidenced by a contract in writing.
- Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon. [emphasis added]
I have not used any credit card that I later defaulted on after June 2008 [Affidavit ¶2, DSOF 6]. Midland filed the complaint on June 11, 2012. [DSOF 7]
Pursuant to ARS 12-505, an action barred by pre-existing law is not revived by amendment of the law:
ARS 12-505. Effect of statute changing limitation
- An action barred by pre-existing law is not revived by amendment of such law enlarging the time in which such action may be commenced.
This action is time barred:
- Midland failed to produce a written contract and it can not produce a written agreement as I did not have written contracts with any of my credit card issuers. [Affidavit ¶3, DSOF 5]
- Midland can not possible document charges less than 3 years prior to 7/20/11, the effective date of the new 6 year statute of limitations [Affidavit ¶2, DSOF 6]
- Time barred actions are not revived by amendment of the law.
- Midland filed suit on 6/11/12, when the action was already time barred.
Attached hereto is DSS Financial v. Deborah Walrod as Exhibit A. On 1/15/09 The Maricopa County Superior Court concluded on appeal that the action for a First USA credit card was time barred as the last charge occurred over 3 years prior to the filing of the lawsuit.
In LVNV Funding v Leslie Thompson, Exhibit B, the Maricopa County Superior Court ruled on 2/15/08 that a claim for a Sears charge card was time barred because the last charge occurred over 3 years prior to the filing of the lawsuit.
Even if Midland could provide admissible evidence to document its claim, this action would be time barred.
The court dismissed Midland’s claim because the SOL had expired.
In the reader’s case, I would argue that the 3-year statute of limitations for open accounts applies, provided that the debt buyer failed to provide a written contract. A credit line is not a credit card as defined by ARS A.R.S. § 13-2101,
Hope that helps!
PS: I would also always challenge the authenticity of debt buyer documentation such as bills of sale, account docs, etc. as I prevailed against debt buyer Acarta because they could not establish standing (the AZ court of appeals remanded after superior court had granted the Acarta motion for summary judgment.)
I’ve been working on my responses to the Midland and Equifax motions for summary judgment. One of my FCRA claims revolves around the Midland verifications of incorrect balances with Equifax.
Midland had sued me in justice court and I realized that Midland charged interest from the date of chargeoff — NOT from the date it purchased the account. In justice court, Midland decided to not seek any interest in its motion for summary judgment to avoid further investigation of its practice to charge illegal interest.
When I sued Midland after its lawsuit was dismissed (expired SOL), Midland provided NO documents at all in response to my discovery requests. After several failed attempts to get them to cooperate with filing a joint discovery motion, they finally provided me with documents on the evening before the doomed settlement conference.
From the 8/18/2014 MCM Supplemental Responses to my Request for Production of Documents, Document # 4, Account #1:
Purch. from HSBC BANK NEVADA, N. A. on 1/26/10, purch. bal. = $2,260.41
Charge-Off Date: 12/31/2008
Charge-Off Balance: 2,260.41
Interest Method: Interest accrued from charge-off date
As per Arizona state law creditors can charge 10% interest. Obviously, a creditor can NOT charge interest PRIOR to its purchase of an account. And that’s exactly what Midland is doing.
Midland charged 10% interest for over two years – while it did NOT own the account!
HSBC was one of the credit card issuers who did not charge interest after an account was charged off (unlike Capital One, which purchased the HSBC credit card portfolio).
In 2003 I sued Capital One and the credit bureaus because they refused to report the Cap One credit limits and this practice could significantly lower FICO scores. Due to my relentless publication and litigation, several class actions were filed and finally all credit bureaus reported the Cap One credit limits around 2007. I sure hope it won’t take several years for Midland to be sued into oblivion!
ALL Midland judgments that include these fraudulent interest charges should be vacated and all collection accounts should be cancelled.
And of course all consumers who PAID these fraudulent interest charges deserve compensation.
It took me over 2 hours to download, print and file the 10/31/14 Equifax and Midland Funding motions for summary judgment and my responses are due in a couple of weeks on December 3.
It is very odd that judge Logan denied my motion to amend my complaint and to join TU so that defendants wouldn’t be prejudiced because the defendants did NOT object to the joinder of TU. He also did NOT extend the discovery deadlines as we had requested. So now nobody got done with discovery and Equifax hasn’t even submitted its initial disclosures. If its motion for summary judgment is denied, we go to trial without any discovery whatsoever. Very strange!
And I’ll have to file a new lawsuit against Midland and TU for the FCRA and FDCPA violations due to the false verifications of the Midland accounts by TU in 6/14. Of course first thing’s first, need to respond to the motions for summary judgment. I’d love to buy the NCLC FCRA book for $250, but I just paid auto insurance and my annual web hosting is due soon, so I’ll greatly appreciate any donations through GoFundMe (almost 10% in fees) or directly via Amazon Payments, Dwolla or by check.
I was hoping to upload all major filings, but with my extremely slow internet connection (1 mb download max on a good day and of course much slower uploads), I don’t know when I get to that. Rumor has it that we’ll get high speed wireless within a few months or even weeks and I’m delaying major web work until then.
I will however post the Equifax documentation with the Midland verifications and the Midland account info clearly showing that they charge entirely FRAUDULENT interest from the time the accounts were charged off to when they purchased the accounts — charging interest while they did NOT own the accounts!
Midland’s practice to charge interest for the time prior to its purchase apparently affects all collection accounts owned by Midland and I estimate that Midland (Encore Capital Group ECPG) collected and continues to attempt to collect MILLIONS of dollars in entirely fraudulent interest charges.
This fraud needs to stop!
I’ve been receiving emails inquiring whether I was ok and requesting status updates. I’m sorry for the silence here, I’ve been so incredibly busy and am finally making time.
Initially the settlement conference was scheduled for 7/7/14 and after countless emails and motions, it was rescheduled to 8/19/14.
The 8/19/14 settlement conference
I can’t discuss what happened at the conference, other than that it failed.
I wanted to reschedule the settlement conference again because I hadn’t received the Equifax initial disclosures and the Midland discovery responses, but attorneys William Fife for Midland and Ann Broussard for Equifax opposed another continuance.
While the Midland defendants’ discovery responses were due on 7/7/14, they didn’t provide a single meaningful response or document until the evening prior to the 8/19/14 settlement conference. I downloaded hundreds of pages around 10 pm and obviously couldn’t review most docs.
However, it is clear from the Midland docs that they report an incorrect DLA for one account to Equifax and that they charge interest from the date of charge-off instead of the date when they purchased the accounts. I will be posting a lot more info about the credit reporting and interest calculations in a separate post.
As expected, the settlement conference resulted in me wasting several hundred dollars on travel, two days on the road and having to drive through countless storms on flooded roads. Not to mention the huge amount of time wasted preparing for the conference.
Incredibly, I was the only person prepared for the conference. While the attorneys attending the conference had claimed that they were fully informed about the case, they didn’t even have the Midland documents proving that it reported incorrect data as I received those discovery responses from their California attorneys the night before the hearing.
Of course I will NEVER AGAIN agree to attend a settlement conference.
The defendants were allowed to attend by telephone and the entire purpose of the settlement conference was to waste my very limited resources or even better, cause me to dismiss my claims because I can’t afford to waste what little time and money I have on a doomed settlement conference. So if you don’t live close to the courthouse, act accordingly. You don’t HAVE to agree to attend a settlement conference.
Apparently the Midland attorneys had NO idea that Midland’s own records show that they report incorrect information to the credit bureaus.
First attorney David Campbell and then his successor attorney William Fife filed all these motions without having any information about the accounts!
Despite clear evidence from Midland’s own records, they still have not notified me that they are correcting their credit reporting.
On 6/23/14 Midland verified the incorrect data with Trans Union and I’m currently working on my 2nd amended complaint to join Trans Union.
I will definitely try to update regularly and I’ve been meaning to post my email communications with the attorneys.
This litigation is not just about correcting my credit reports and getting paid for my damages, but I’d like to do whatever it takes to not have to sue for false credit reporting again. After all, I’ve been in court for 12 or 13 years now and I’m continually experiencing NEW issues. I’m sick and tired of corrupt courts!
As this case documents, scummy debt buyers won’t even correct their credit reporting when sued and their own docs show that they report false data.
The system needs to be changed and consumers need to be able to hold credit bureaus, creditors and debt buyers accountable WITHOUT having to spend a fortune on litigation.
Corporations ignore consumer protection laws with impunity. The Consumer Financial Protection Bureau needs to step up its enforcement actions and as my litigation documents, we need a CONSUMER COURT with judges well trained in consumer law and ensuring that FAIR and SPEEDY proceedings will result in JUSTICE.
Of course it’ll require LOTS of work to bring these issues to the attention of legislators and regulators and I’m not superwoman.
I currently have two main “hobbies”:
My day could have a hundred hours and I still wouldn’t get everything done. So I decided to let YOU tell me how important it is to make it easier for consumers to find justice in courts, or even better, without going to court, and to enhance consumer protection laws such as the FDCPA.
I finally created my GoFundMe page and I plan on some major updates for this website.
It’s up to YOU to make it happen.
From a post in a soil health group:
I think we should have worldwide mass tongue removals of pathological liars.
Leave them their lives, don’t even remove them from office or function. Just remove their tongue.
The archetype “The Devil” or “Baal” is called the Lord of Lies for a reason. All power of intimidation comes from Lying. Weapons are only secondary, The Lie is primary.
Although there are other forms or tools used for Lying, truly the most effective way of lying (and causing the greatest psychological damage) is speech. Remove that power, and it is like clipping wings.
Also most of the power of a Lie comes from its quick, ad hoc, response (or failing that, its dragged out empty circular rhetoric). It catches people unawares and off guard.
The written word does not nearly have so much power. This is due to the time-delay because of the reading and the processing of the words in our brains. It is a personal process, and will allow our own thoughts greater control over what is being assimilated.
So the removal of tongues from the Liars will greatly help others see through the bullshit.
There’s a thought. But I think the keyboard also needs to be taken away.
It is true that the written word does not have that much power because you have time to consider a response, if it’s possible to respond.
And that’s the reason why I never want to argue with lawyers in court — where I don’t have any time at all to think about how to prove that they’re lying. And often there are so many lies, you just don’t have time to address them all.
Midland and MCM didn’t provide a single document in response to my discovery requests. Last week I asked that they provide me with their portion for a joint motion regarding this discovery dispute. Instead, they sent me this bizarre protective order:
I emailed to her yesterday:
The Proposed Protective Order states:
“…. in order to facilitate the exchange of information and documents which may be subject to confidentiality limitations on disclosure due to federal laws, state laws, and privacy rights, the Parties stipulate to the following Stipulated Protective Order: ”
I am perfectly capable of protecting my private data such as my social security number and other personal information and if I wish to publish it, that’s my right. I trust that you will comply with state and federal laws and that you and your clients will refrain from publishing my personal data without a protective order. Since I did not ask for any personal and private data from your clients, the Order is simply not necessary.
As you already know, this case will be used to document that consumer laws such as the FDCPA and the FCRA need significant enhancements and I am preparing a website for regulators, legislators and consumer activists so they can see for themselves what happens when a consumer who can’t afford to pay an attorney sues a debt buyer like Midland for correct credit reporting.
And lastly, the Proposed Protective Order is completely unclear on the procedures. Am I supposed to fly around the country to “inspect” documents?
Please immediately provide ALL documents requested and if you feel that any document contains your clients’ “private” data, identify each document and state exactly which information you consider private.
Attorney Gabriel’s response today:
Dear Ms. Baker:
Please clarify your statements below and explain precisely which terms in the draft Stipulated Protective Order are unclear to you.
With respect to your bolded request below, we are not required to list in advance which documents we consider confidential. This is the purpose for the Protective Order. As previously explained, we will supplement discovery responses and exchange documents with you once a Protective Order is in place.
If you do not want to agree to a Stipulated Protective Order, please let us know and we will proceed with our Motion for Protective Order.
Tamar Gabriel, Esq.
Carlson & Messer LLP
Did I not write in English?
What is it you don’t understand?
Do you EVER actually answer a question?
The only thing that keeps me going is knowing that the more obnoxious they are, the more likely it is that legislators will significantly enhance the FDCPA and FCRA.