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!
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.
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.
It was a nightmare last week leading up to the settlement conference scheduled for 7/7.
I would have NEVER agreed to a settlement conference had I known that the defendants would appear by telephone, see my post Settlement discussions with Midland Funding and MCM.
I had been out all day when I got the judge’s order granting Midland’s motion to appear telephonically despite my opposition and I ended up working on my motion to reschedule the hearing to August till 3:30 AM. In the alternative, I requested permission to appear telephonically. Why the hell should *** I *** have to incur the costs and waste MY time to have to travel to Phoenix? After all, I filed the lawsuit in Kingman and Midland had it removed to federal court.
Out of nowhere, Equifax had also filed a motion to appear telephonically. Apparently it was just served by the US Marshals Services on 6/26.
Fortunately, the hearing was rescheduled to 8/19 on the Wednesday before the 4th of July, but I have to drive to Phoenix to attend. Then Equifax wanted to move the hearing to 8/18 due to their attorney’s travel schedule. I offered to go on the 18th which requires an extra day car rental if Equifax pays for my extra costs, but they advised that they would not reimburse my additional expenses. So it’s 8/19 and both Equifax and Midland will appear by phone. Considering how sick and tired I am of those lying lawyers, settlement is extremely unlikely.
I have to say that it is extraordinary how the lawyers are deliberately offending me, lying to me and being at their absolute worst. Obviously, they get paid much more if we don’t settle and they managed to piss me off tremendously in those weeks leading up to the settlement conference. Great job!
There is the option to cancel the conference if we feel that it will not be productive and I’ll probably do that.
My next post will be about Midland’s refusal to provide ANY documents requested through discovery unless I sign a confidentiality order.
This is a DRAFT to be updated with edits and links to documents
The conference is set for 7/7/14 and on 6/12/14, over a month after the settlement order was issued, Midland and MCM attorney David Kaminski left a VM for me and I returned his call a few hours later. He inquired about my claims and tried to appear to have a sincere interest in the credit reporting issues. I explained the incorrect balances and date of last activity for one of the two accounts.
Attorney Kaminski informed me that they were filing a motion to appear telephonically at the settlement hearing and he claimed that they had agreed to my requests for extensions (a blatant lie). He also stated that the reason for my request for an extension, having to attend to our small organic farm and plant, was not good cause. What a @#$$#@!
My first reaction to their motion for telephonic appearance was:
“Why should *** I *** drive 250 miles to Phoenix?
He suggested a joint motion for me and Midland to appear telephonically and I agreed to it.
We got off the phone, I checked my email and they had already filed their motion — without any mention of MY telephonic appearance.
I realized that a telephonic settlement conference would most likely NOT result in a settlement and only waste the court’s time. They sent me the draft of a revised motion, but I decided not to sign it, especially because I actually went through the emails with former Midland attorney Andrew Campbell and it’s just so typical for lawyers to claim that they agreed to my requests for extensions when they did not.
So I was thoroughly pissed off. I truly hate being lied to and I especially hate being lied to by lawyers. You can tell me a million times that I have to expect attorneys to be scum sucking bottom feeding liars, but I’ll never get used to it and it will always make me angry. I also have to say that I have dealt with a few (not many) lawyers that actually were quite nice, not the typical debt collection lawyers, and guess what … their clients got settlements.
Instead of signing their joint motion for telephonic appearance, I filed my opposition on 6/25/14, the deadline provided by the settlement judge.
On Friday 6/27/14 attorney Tamar Gabriel called me to inquire about my credit reporting claims (incredibly, they refuse to read my court filings and they don’t talk to each other) and I once again explained everything. I feel like the village idiot, being conned into wasting my time and AGAIN explaining the incorrect balances and the incorrect date of last activity. Ms. Gabriel stated that her clients’ position is that they are reporting correct information. Of course that made me angry again. Not only did I waste my time explaining the credit reporting AGAIN, but to add insult to injury, they DENY that the obviously incorrect credit reporting is incorrect. “The sky is green.”
What a bunch of @#$#@$#@!!.
Attorney Gabriel also inquired about a new settlement offer. I had asked for only $25k (two years of litigation and they STILL don’t correct the credit reporting!). They had submitted a $1,501 offer of judgment for ALL claims, including the FDCPA claims that were dismissed because MIdland’s filing of the lawsuit for a time barred debt was the last opportunity to comply with the FDCPA (Naas). Essentially this means that after the filing of a lawsuit that violated the FDCPA ANYONE can do WHATEVER they want to the consumer without any FDCPA liability whatsoever and forever. Of course I will appeal and I give it 99% that I’ll prevail.
So I countered the Midland offer with $20k for the FCRA claims and attorney Gabriel didn’t seem to like that. They filed their reply in support of their motion for telephonic appearance and FALSELY claimed that they had discussed their 6/12 motion with me prior to the filing. In fact, they discussed the motion WHILE they were filing and that’s important because they were responding to my argument that they filed their motion untimely, over a month after the settlement order and long after I had made arrangements to be in Phoenix on 7/7.
Since Midland apparently also claims that Equifax did not properly provide my disputes (in addition to claiming that the reported data is accurate), we all agreed that the settlement conference should be rescheduled and held after Equifax appeared. So I expect the court to reschedule rather than to waste its time on the settlement conference.
We really need new laws with MINIMUM statutory damages for lies and misrepresentations in litigation with unrepresented consumer litigants. And of course we need laws making it very clear that while pro se litigants are NOT entitled to attorneys fees, they ARE entitled to damage awards for the time wasted due to litigation.
At this point, it is practically IMPOSSIBLE for a consumer to “win” a lawsuit for violations of consumer protection laws because it will cost consumers MUCH more than they’ll ever get in a settlement or judgment.
How many THOUSANDS of judgments for TIME BARRED DEBTS or debts without legally admissibly documentation has Midland Funding obtained because the alleged debtors couldn’t find a lawyer to represent them on contingency, they could not afford to pay an attorney and they couldn’t afford to take the time to learn how to fight these vultures?
We all agreed to a settlement conference with a magistrate judge at the 2nd case management hearing. So last Thursday attorney David Kaminski with Carlson & Messer LLP in LA called me to inform me that they wanted to appear by telephone. My first reaction was that I sure don’t need to drive to Phoenix if they won’t go.
We talked for a while, attorney Kaminski was not at all familiar with the case, he really had no clue whatsoever about my FCRA claims and I tried to explain a few things to him. And I agreed to a joint motion for all parties to appear by telephone.
When I checked my email after we got off the phone, they had already filed their motion and after I read it, I realized that I have to attend the settlement conference in person. From their motion:
… Midland denies Plaintiff’s allegations. Midland reported accurate information regarding Plaintiff’s debt. As such, Midland is not liable to Plaintiff for damages under the FCRA.
What a bunch of MORONS!
It has LONG been established that Midland and MCM reported FALSE information to the credit bureaus and just a few weeks ago they VERIFIED the false information with Equifax according to the Equifax investigation results.
The million dollar question:
Why on earth would they agree to the settlement conference if they are not liable? After all, Midland and MCM have been litigating against me for years and they never once made any settlement offer whatsoever.
WHY did they agree to the settlement conference?
From their motion:
Midland respectfully contends that the costs of a personal appearance by its settlement representative and its counsel at the MSC are significant and thereby not conducive to settlement negotiations. Furthermore, the MSC will not be hindered if Midland’s settlement representative attends by telephone because Midland can still meaningfully participate telephonically and has done so in MSCs in the past. …
Due to the claims in their motion and attorney Kaminski’s lies during our phone conversations (he claimed that they had agreed to my requests for extensions which is completely false), I decided to attend the settlement conference in person. If I’m on the phone, I won’t have a chance to properly respond to their lies.
I’ve attended settlement conferences before and I found magistrate judges to be quite competent and settlements are much more likely if the parties appear in person. One time the conference lasted over 7 hours, but we did settle.
So here is my email to attorney Tamar Gabriel who emailed the joint request for telephonic appearance on Friday: Continue Reading
This afternoon we had the case management hearing and fortunately judge Campbell in Phoenix federal court allowed me to attend by phone as I live about 250 miles from Phoenix.
Judge Campbell had denied my motion for permission to file electronically and in our case management report I wrote: Continue Reading