MIDLAND FUNDING, LLC NUMBER: 2012R02011
VERSUS SHREVEPORT CITY COURT
KENNETH ALEXANDER CADDO PARISH, LOUISIANA
DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Defendant, KENNETH ALEXANDER, respectfully responds in opposition to plaintiff’s motion for summary judgment, as follows:
Pending is a Motion for Summary Judgment by plaintiff. Plaintiff has proposed to file two Affidavits in support and defendant respectfully objects to and shows that the motion for summary judgment must be denied. The hearing on this matter is an evidentiary one. The document identified as an “Affidavit” is not in proper form and does not constitute an Affidavit by law. The facts of the case are simple. Plaintiff claims that it is the assignee of an alleged debt incurred by plaintiff. Further, plaintiff claims that defendant owes it some $17,306, or more. Defendant denies these allegations. This case involves serious issues concerning plaintiff’s litigation practices and debt buying and collection practices, as discussed herein.
II. THERE IS NO EVIDENCE OF AN ASSIGNMENT AND THE ALLEGED AFFIDAVITS ARE OBJECTED TO AND ARE SHAM FILINGS
[a] THERE IS NO PROOF OF AN ASSIGNMENT OR STANDING
There is no proof of any assignment. Plaintiff filed suit against Defendant claiming that Plaintiff was the owner of all rights, title and interest in a receivable issued through Chase Bank USA, NA. Defendant denied Plaintiff’s requests for admissions. Plaintiff claimed that Defendant is indebted to Plaintiff, which is denied. Plaintiff then claimed that Defendant owed monies on a Chase Bank USA, NA, account which is denied. Defendant challenges the right and standing of plaintiff to bring any claim against. Plaintiff has failed and continues to fail to produce a single item of admissible proof of any assignment or ownership of any alleged debt.
Plaintiff refers to itself as a “Servicer” which does not have standing by law to file a suit for the alleged creditor, who is not the plaintiff. Petch v. Humble, 939 So.2d 499, 2006 WestLaw 2422914 [La. App. 2 Cir. 2006]; Hamilton v. AAI Ventures, L.L.C., 768 So.2d 298 [La. App. 1 Cir. 2000]. Plaintiff lacks procedural capacity and standing to file suit for anyone else.
Plaintiff is a different entity from the alleged owner of the alleged debt. Comparable to the present case, the court in Natl. Check Bur., Inc. v. Ruth, Slip Copy, 2009 WestLaw 2516123 [Ohio App. 9 Dist. 2009], found that an assignment was not properly proven. Further, the decision in Unifund CCR Partners Assignee of Palisades Collection, L.L.C. v. Hemm, Slip Copy, 2009 WestLaw 2106289 [Ohio App. 2 Dist. 2009], the court noted that plaintiff and the alleged assignee, failed to explain their relationship, if any. The law does not vary state-to-state. “The party asserting that a debt is due to it by virtue of an assignment must prove that the debt was in fact assigned to it. Ceramic Tile Intern., Inc. v. Balusek, 137 S.W.3d 722, 724 [Tex. App. - San Antonio 2004, no pet.]; Delaney v. Davis, 81 S.W.3d 445, 448-49 [Tex. App. - Houston [14th Dist.] 2002, no pet.]. In Ceramic Tile, the Court of Appeals reversed a trial court's judgment favoring an assignee who never introduced the assignment into evidence at the trial. See 137 S.W.3d at 725. Although the assignee attached a copy of the assignment to its pleadings, the appellate court held that the assignee's failure to place the assignment into evidence during trial precluded it from recovering on its claim. Id. Several appellate courts have relied on the same principle requiring creditors to prove their assignees' rights at trial and, where the evidence failed to show the assignments, similarly denied their recoveries. See Powell v. McCauley, 126 S.W.3d 158, 163 [Tex. App. - Houston [1st Dist.] 2002, no pet.]; American Fire & Indem. Co. v. Jones, 828 S.W.2d 767, 769 [Tex. App. -Texarkana 1992, writ denied]; Pape Equipment Co. v. I.C.S., Inc., 737 S.W.2d 397, 399 [Tex. App. - Houston [14th Dist.] 1987, writ ref'd n.r.e.]; see also Esco Elevators, Inc. v. Brown Rental Equipment Co., Inc., 670 S.W.2d 761, 764 [Tex. App. - Fort Worth 1984, writ ref'd n.r.e.]; Briscoe v. Texas General Ins. Agency, 60 S.W.2d 814, 815 [Tex. Civ. App. - Amarillo 1933, no writ]; Indemnity Ins. Co. of North America v. Garsee, 54 S.W.2d 817, 820 [Tex. Civ. App. - Beaumont 1932, no writ].” Skipper v. Chase Manhattan Bank USA, N.A., Not Reported in S.W.3d, 2006 WestLaw 668581 [Tex. App.-Beaumont 2006].
Perhaps the best and most colorful discussion of Midland Funding’s inability to prove standing and assignment is in Midland Funding LLC v. Loreto, 34 Misc.3d 1232[A], 950 N.Y.S.2d 492 [Table] [N.Y. City Civ. Ct. February 23, 2012], where the court held: “A. Is there any proof of the underlying assignment? The complaint alleges the underlying consumer credit account was sold by Citibank to Midland Funding LLC. Attached as an exhibit to the motion is a “Bill of Sale and Assignment” from Citibank [South Dakota], NA and an “Asset Schedule” alleging that this account was one of many included in a Bill of Sale and Assignment dated August 20, 2010 and packaged with an undisclosed number of other accounts in a Purchase and Sale Agreement between Buyer and Bank with the date “ redacted ” [emphasis in original]. Likewise the “Asset Schedule” states: “The individual Accounts transferred are described in the final electronic file delivered by the Bank to Buyer on or around August 18, 2010 the same deemed attached here to by reference.” The remainder of this document is also “redacted ” [emphasis in original]. Neither document contains any reference to this specific account nor discloses how many “accounts” were included in the transfer. Neither exhibit discloses the amount of consideration, if any, tendered by Midland to Citibank. This confirms that plaintiff has adopted “Guys & Dolls” character Big Jule's “spotless dice” logic to consumer credit transactions. FN 1. [[FN1. “Guys and Dolls” is a musical by Frank Loesser based on stories of Damon Runyon.]] Additionally the Bill of Sale and Assignment refers to “the terms and conditions of a Purchase and Sale Agreement” which is not included as an exhibit in this litigation and may set forth rights and defenses available to defendant herein. The court must question why it has been omitted. Submission of a document in this form absent even a modicum of proof that the defendant's account was included in the transaction, would be acceptable if the person signing the paper was Mammy Yokum of “Lil Abner” fame because when she said “I has spoken” the validity of her conclusion was received without question by the inhabitants of the town of “Dogpatch, USA. FN 2.” [[FN 2. “L'il Abner” is a musical with lyrics by Johnny Mercer and music by Gene de Paul based on the characters created by Al Capp in the comic strip of the same name.]] Perhaps plaintiff is asserting the “Yul Brynner Character” Rule of Evidence. For instance, in his role as Pharaoh Rameses [spelling in film] in Cecil B. DeMille's epic “The Ten Commandments” he said “So let it be written. So let it be done” FN3 thereby indicating the infallibility of his pronouncement. There is also the statement in the musical “The King and I” when Brynner's royal character says “When I sit, you sit. When I kneel, you kneel. Et cetera, et cetera, et cetera!” FN4 Again making the issuance of the statement not subject to challenge. What do these quotes have in common with plaintiff's submission? They are “bald” statements by a “bald” actor playing “bald” characters while plaintiff's submission is also “bald” but with the added factor of being “unsubstantiated.” [[FN3. This is often quoted as “Let it be said. Let it be written” rather than what Rameses actually said in the movie. The court cannot locate a source of the quote other than from the film. As an historic note, Egyptologists believe that Moses name is actually Egyptian in origin with “mos” or “mes” meaning born of or son of and attached to the name of a god, such as Ra-messes, Thut-mos, Amen-mose, Ach-mose. Because he was raised in the pharaoh's household it is theorized that the biblical Moses would also have the name of an Egyptian god before the name moses.]] [[FN4. The Rodgers and Hammerstein musical “The King and I” was based on the story written by Anna Leonowens, about her time as the tutor for the children of King Mongut of Siam, entitled “Anna and the King of Siam.” After she returned from Siam she ran a girls' school on Staten Island, about one mile from the courthouse. ]] However, because we are neither in Dogpatch nor the 6th Dynasty of Egypt's Old Kingdom, nor 19th Century Siam, the document cannot be accepted to establish the assignment of the defendant's account to the plaintiff. Neither the Bill of Sale and Assignment nor the Asset Schedule specifically refer to the defendant's account. Further, there is no affidavit from someone with personal knowledge of the account to verify as to the accuracy of this information. The document is merely signed by an employee of Citibank [South Dakota], NA. There is no indication that Midland Funding LLC accepted the assignment. The documentation is legally insufficient to establish the proper assignment of the account and cannot be the basis of a judgment whether on default, by motion, inquest or trial. *** C. Is the Kohls statement a “robo” document? Owing to Midland Funding, LLC having been found by a federal court in Ohio [ Brent v. Midland Funding, LLC, 2011 WestLaw 3862363 [ND Ohio]; 644 F.Supp.2d 961 ] to have engaged in the practice of “robo-signing” of documents in violation of the federal Fair Debt Collection Practices Act [FDCPA] [15 USCA §1692 et seq] and the Ohio Consumer Sales Practice Act [OCSPA] [Ohio Rev.Code Ann. §1345 et seq], this court is compelled to review plaintiff's documents to see if robo-signing has occurred. This was also necessitated by the fact that the court in Brent found the robo-signing was being done by “specialists” in Midland Funding's litigation support department and Kohls is designated as a “Legal Specialist' for MCM. The Kohls statement consists of three pages. The first page contains three numbered paragraphs. The second page contains a 4th numbered paragraph followed by about 2/3rds of a blank page. Page three contains the certification statement, Kohls' signature, and the acknowledgment. What subjects the document to question is the large unexplained blank space on page two with the signature on a separate page. Was something eliminated? Good business practice requires the page to be marked something to the effect of “Left Blank Intentionally.” The acknowledgment has all items typed except the date; which is entered by a stamp. This indicates that Ms. Kohls must be executing similar certifications which only need a date entered. As mentioned above, the caption lacks a court and county designation. It only indicates it is for use in the “State of New York.” The bottom of each page has a straight line beneath which it identifies the document as an “Affidavit of Nancy Kohls in Support of Plaintiff's Motion for Summary Judgment” followed by a page number. Below that, is what appears to be a bar code with the MCM account number, a bar code with an affidavit motion summary judgment designation, and a third bar code with a number for Pressler & Pressler's file number. What also makes the court question the independent basis of the submission is the fact that all the dates are presented numerically as the year, the month and the day, i.e. the date the account opened is “2000–03–17.” This is not a usual way to present this information in American business transactions and in common, everyday practice and, according to some sources, is the standard way of calendar dating in Asian countries, Hungary, Sweden and the U.S. armed forces. It appears to be something either generated by a computer program or prepared overseas rather than dates put in an affidavit by an individual reviewing a file in St. Cloud, Minnesota. The court cannot conclude at this time, that this is a “robo” document. But the above items will require that inquiry be made in that regard at the time of trial and for plaintiff to establish its proper preparation. [emphasis added, in part.].”
[b] THE AFFIDAVITS PRESENTED BY MIDLAND FUNDING ARE OBJECTED TO AS HEARSAY, LACKING FOUNDATION, NOT MADE ON PERSONAL KNOWLEDGE AND NOT IN PROPER FORM AND ARE PART OF A CONTINUING SHAM THAT MIDLAND FUNDING HAS CONTRIVED
Plaintiff now seeks to file two so-called “Affidavit” of Keith Sias, an employee of plaintiff’s counsel’s law firm, and David Patton, who claims to be a “Legal Specialist” working for a third party, MIDLAND CREDIT MANAGEMENT, INC. Both purported affidavits are hearsay, lack foundation and are deceptive writings by plaintiff through plaintiff’s legal department and outside counsel’s paralegals. Neither purported affidavit is in proper form or content. Both are pro forma, as previously used by this entity and its “sister” debt buyer/debt collection entities. Plaintiff did not attach [nor did not originate any account records though undisclosed] from the creditor or any assignee and the purported affiants have no standing or foundation to testify to the accuracy of any such information. Worse yet, MIDLAND CREDIT MANAGEMENT, INC., did not create the information at issue. MIDLAND CREDIT MANAGEMENT, INC., is not Chase Bank. MIDLAND CREDIT MANAGEMENT, INC., is a third party debt collector, as is Encore Capital and as is Midland Funding.
Plaintiff has been completely evasive and failed to produce information or documents necessary to evaluate the motion, for example, any purported assignment needed to show standing, the actual cardholder agreement, statements and source documentation concerning the payments and plaintiff’s disputes.
Patton’s so-called affidavit [which is almost a mirror image to other filings plaintiff made in Midland Funding, LLC v. Curtis Bertram, No. 2009R04842, Shreveport City Court and Midland Funding, LLC v. Byron Spinks, No. C-76220, Bossier City Court] makes only conclusory remarks by a paralegal in the debt collector’s legal department of which the declarant [not affiant] has no personal knowledge or even familiarity with source documents, and Midland Funding, LLC v. Edward Cooper, No. C-77104, Bossier City Court and Midland Funding, LLC v. Michael Hickey No. 2009R02866, First Judicial District Court, Caddo Parish, Louisiana. “Supporting and opposing affidavits must be “made on personal knowledge” and all papers or parts thereof referred to in the affidavit must have “sworn or certified copies attached.” La. C.C.P. art. 967A. The affidavit of the private investigator did not establish personal knowledge of OMV's reporting practices and thus was not admissible. Shelter Ins. Co. v. BroanNutone LLC, 39,625 [La. App. 2 Cir. 5/11/05], 902 So.2d 1146, writ denied, 2005–1483 [La. 12/16/05], 917 So.2d 1112.” Lockwood v. Allstate Ins. Co., --- So.3d ----, 2013 WestLaw 163821 [La. App. 2 Cir. January 16, 2013].
Clearly, Midland Funding failed to comply with its settlement of nationwide class actions addressing its affidavit practices. See Brent v. Midland Funding, LLC, Not Reported in F.Supp.2d, 2011 WestLaw 3862363 [U.S.D.C. N.D. Ohio September 1, 2011]. There was injunctive relief provided for in the settlement that required Midland Funding to stop these very same practices.
The writings [none of them] are made or based on any form of personal knowledge and are strictly pro forma in each and every case where these paralegals file these statements. An Affidavit must be in proper form and content, being properly sworn and attestation, made on personal knowledge and must contain properly authenticated attachments, in order to be admissible evidence in a summary judgment motion. Plaintiff’s filings in support of its motion wholly failed to meet the evidentiary standards and are objected to in this motion and defendant’s opposition to the motion for summary judgment.
Alarming is plaintiff’s use of false so-called “affidavits” and documents in other cases. In Midland Funding LLC v. Brent, 644 F.Supp.2d 961 [U.S.D.C. N.D. Ohio 2009], the Federal District Court addressed a Midland Funding “Legal Specialist”/ paralegal/ legal liaison’s statement that was offered into evidence, absent proper objections, and the court explored the assertions in that affidavit and found: “In finding assertions in the affidavit to be false and misleading, this Court is not concluding that all the information in the affidavit is incorrect. Brent has provided no evidence that the amount of the debt, the fact that it is unpaid, or other vital account information, is false. As discussed infra, the actual account information is probably either correct or likely thought correct in good faith by Midland and MCM [and likely a bona fide error if so]. 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. Midland, MCM, or JBR could easily prepare a form affidavit that achieved the same goals without being misleading by reflecting the truth, plain and simple. Rather than basing the affidavit on false personal knowledge, they could base it on the accuracy of the records kept and the accuracy of the data. [emphasis added.].” This Honorable Court might take note that, just as in Brent, supra, and Bertram, supra, and Cooper, supra, Midland Funding claimed to be the owner of the account rights yet “[A]fter MCM purchased the debt, MCM employed Midland to pursue collection of the amount owed on the card.” It appears that Midland Credit Management, Inc. [“MCM”], is purchasing debts yet “Midland Funding, LLC” is filing suits in its name, possibly, to try to allow MCM, as the capitalized entity, to avoid exposure for FDCPA, 15 U.S.C. 1692, et, seq,, FCRA, 15 U.S.C. 1681, et. seq., et al, damage claims and class action claims.
Of course, Midland has not cured its deceptive practices. Consider the decision in Henggeler v. Brumbaugh & Quandahl, P.C., LLO, --- F.Supp.2d ----, 2012 WestLaw 4056094 [U.S.D.C. Neb. September 12, 2012], rendered recently by the federal District Court in Nebraska, where the court held: “The court finds Midland has not shown that a valid agreement to arbitrate exists. Midland has submitted only a generic cardmember agreement from Chase Bank. The agreement is unsigned and Midland has failed to provide evidence that Henggeler was a party to the agreement. Henggeler has stated she has not seen the agreement and did not use the credit card in question. Although there is some intimation that the card may have been used by her daughter, Midland has not established an agency relationship and evidence of the daughter's identity or use of the card is lacking. On this record, the court finds there is a failure of proof with respect to a valid arbitration agreement. The court has not been provided with any signed credit card application, credit card agreement or with the affidavit of any person with personal knowledge that Henggeler had signed such an agreement. Ms. Paperman's affidavit shows on its face that it is not based on first-hand knowledge. She states no more than that she has access to records made by, or made from, information transmitted by a person with first-hand knowledge. The evidence outlining Ms. Paperman's responsibilities [“her title was CCS Vendor Portfolio Liaison ...”] is meaningless without some definition of the meaning of those terms or explanation of the functions of that job. She states only that a cardmember agreement was provided to Henggeler, but there is no evidence that Henggeler received it, reviewed it, or agreed to it. The record shows statements were sent to a Plattsmouth address. Midland has not refuted Henggeler's evidence that she did not live at the address and did not receive the statements. Furthermore, Midland has not shown that it has a valid assignment of the purported debt, if valid, from Chase. The documentary evidence of the sale is incomplete. There is nothing that shows Henggeler's purported account was one of the Chase accounts sold to Midland. The “data file” referred to in the bill of sale was not provided to the court. Further, the sales agreement itself, though referenced in the bill of sale, was not attached and the one-page “closing statement” was extensively redacted. The affidavits on which Midland relies are not based on personal knowledge, contain hearsay and lack foundation. FN4 [[FN 4- Like the evidence at issue in Webb v. Midland Credit Mgmt., Inc., ––– F.Supp. ––––, 2012 WestLaw 2022013, Midland has failed to lay foundations for exhibits, failed to establish authenticity, and failed to establish that the evidence is not hearsay. In fact, Midland provided less evidence in this case than it did in Webb. In Webb, the defendant had at least submitted a print-out from electronic records identifying the plaintiff's account as one that had been sold to the defendant. Webb, 2012 WestLaw 2022013 at *2.]] The court finds it prudent to exercise caution and to demand sufficiently documented proof of consumer indebtedness in a case, such as this, involving a debt buyer. Other courts have noted that “the possibility of a debt collector attempting to collect a debt that it does not actually own, either through assignment or otherwise, is very real.” Webb v. Midland Credit Mgmt., Inc., ––– F.Supp. ––––, 2012 WestLaw 2022013 at *5 n. 8 [citing Peter A. Holland, The One Hundred Billion Dollar Problem in Small Claims Court: Robo–Signing and Lack of Proof in Debt Buyer Cases, 6 J. Bus. & Tech. L. 259 ; Rick Jurgens & Robert J. Hobbes, The Debt Machine: How the Collection Industry Hounds Consumers and Overwhelms Courts, The Nat'l Consumer Law Ctr. [July 2010], available at http://www. nclc.org/images/pdf/pr-reports/debt-machine.pdf]; see also, Midland Funding LLC v. Brent, 644 F.Supp.2d 961, 970 [N.D. Ohio] [enjoining Midland from using form affidavits that falsely claim to be based on defendant's personal knowledge], modified on reconsideration, Midland Funding LLC v. Brent, No. 08 Civ. 1434, 2009 WestLaw 3086560 [N.D. Ohio Sept. 23, 2009] [narrowing order]; Williams v. Javitch, Block & Rathbone, LLP, 480 F.Supp.2d 1016, 1022–24 [S.D. Ohio 2007] [finding allegations that a debt collector's law firm filed debt collection actions based on affidavits that it “knew or should have known” were not based on personal knowledge stated a claim under the FDCPA]. FN5 [[FN 5- Williams also involved allegations that the law firm's “pattern and practice” [was] to prepare and file debt collection complaints attaching affidavits from creditors whose knowledge of the specifics of the original debt is limited or non-existent. The fact of the very high rate of default judgments entered in such collection actions creates a disincentive to “check the truth and accuracy” of its pleadings or its client's affidavits. In the few cases in which a debtor answers the complaint, or seeks discovery, [the law firm] dismisses the lawsuit without prejudice. Williams, 480 F.Supp.2d at 1022.]] Notably, the Federal Trade Commission's 2009 Workshop Report identified inaccurate information as a serious problem with current debt collection practices. Federal Trade Commission, Collecting Consumer Debts: The Challenges Of Change, a Workshop Report at 22, 31 [Feb.2009] available at http:// www.ftc.gov/bcp/workshops/debtcollection/dcwr.pdf [noting that debt buyers often receive “only a computerized summary of the creditor's business records when [they] purchase a portfolio” and “typically do not have access to the original credit application with the consumer's signature, the specific contract that applied to the consumer's account, copies of original credit statements, or customer service records that could confirm or clarify a fraud claim or a legitimate consumer dispute”]. In 2010, the Federal Trade Commission issued a report that identified and discussed, inter alia, industry-wide problems with debt buyers failing to substantiate their claims against consumers. See Federal Trade Commission, Repairing A Broken System: Protecting Consumers In Debt Collection Litigation and Arbitration at 18 [Jul.2010] [hereinafter, “Broken System Rep't”], available at http:// www.ftc.gov/os/2010/07/debtcollectionreport.pdf] [noting that the age, amount, and quality of debt-related information transferred when debt is sold results in debt collectors increasingly seeking to collect from the wrong consumer, in the wrong amount, or both, and concluding that “neither litigation nor arbitration currently provides adequate protection for consumers”]; see also Federal Trade Commission, Annual Report 2011: Fair Debt Collection Practices Act  at 18, available at http://www.ftc.gov/opa/2011/03/fairdebt.shtm [describing an industry-wide investigation that the Commission is conducting of the debt buying industry]; Consumer Financial Protection Bureau, CFPB Annual Report 2012: Fair Debt Collection Practices Act, App'x A at 3  [noting that “one of the Commission's major consumer protection concerns is the quantity and quality of information that debt collectors have, use, or convey to others in their collection activities”]. The FTC “recognizes that the rigorous application of existing rules in individual cases could mitigate this problem.” Broken System Rep't at 17. [emphasis added.].”
Respectfully, Midland Funding has been determined to present false affidavits nationwide in efforts, as a debt buyer, to obtain judgments against consumers where Midland was not entitled to do so. Also see Vassalle v. Midland Funding LLC, Slip Copy, 2012 WestLaw 4888319 [U.S.D.C. N.D. Ohio July 5, 2012]. This is a nationwide practice, not just local to our small part of Louisiana.
Midland Credit Management is not a “Servicer” of any account. It is a debt buyer and debt collector. It does nothing to generate, maintain or have any first hand transactions or experiences with any account in usage. Mr. Patton has no “personal knowledge of those account records...” par. 1, statement of Patton. Note that Eisenhart and the other purported affiants in the other aforementioned cases made the same false assertions and those affidavit were uniformly rejected. Midland created no business records relative to the subject account.
Compounding matter, Keith Sias, an employee of Eaton Law Group, plaintiff’s counsel, filed a “Supplemental Affidavit of Correctness of Account.” Sias is a paralegal for the plaintiff’s counsel. Involvement as a witness disqualifies plaintiff’s counsel’s law firm as counsel. Further, Sias’s writing does not attest to be made on personal knowledge. Further, Sias claims to be “familiar with the defendant’s MASTERCARD account.” Note the ‘AllCaps’ used for pro forma generation of these writings. Sias has NO KNOWLEDGE of anything related to defendant’s use of credit, charges, payments, accounting or anything else. A lawyer’s “monitoring” of a legal file assignment to that firm does not qualify that paralegal or lawyer to attest to any fact. Sias even goes so far as to attest that defendant “does not qualify for exception pursuant to the Soldiers’ and Sailors’ Civil Relief Act of 1940.” Sias has no idea whether defendant is an active military serviceman or otherwise entitled to protection. Sias goes on to define Midland Funding as the “holder of credit” which is some undefined concept of unintelligible origin. Sias lacks any knowledge of any fact and his purported affidavit is wholly improper in this case and any other case.
From the inception, Defendant disputed and contested Plaintiff’s claim. Defendant will testify in opposition to the motion for summary judgment that he is not indebted to plaintiff on said account. Plaintiff will be unable to provide any evidence of such an indebtedness or account or assignment.
The copy of the motion for summary judgment served upon defendant lacks any form of attachments beyond the two purported affidavits and no other papers.
Midland Funding’s motion for summary judgment must be denied. Respectfully submitted,
David A. Szwak, LBR# 21157, TA
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404
Mid South Tower
Shreveport, Louisiana 71101
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing has been served upon all counsel of record by placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid on this the __ day of _______________, 2013.
Identity Theft, Account Takeover, Unauthorized Use, Misuse, Apparent Authority, Authorized Use.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association
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- Personal Jurisdiction and Venue in Credit Reporting Cases
- FCRA Litigation Strategies and Procedural Issues and Law
- Settlements, Releases, Prevailing Party Status, and Other Things You Need to Know If You Resolve Your Case Before Judgment
- Offers of Judgment In FCRA Litigation
- Secret Documents, Product Information and Testimony
- Choicepoint Secret Documents:
- Equifax/CSC and Affiliates Secret Documents:
- Experian Secret Documents
- Innovis Secret Documents:
- Trans Union Secret Documents
- Furnisher and Public Records Suppliers Secret Documents
- Respondeat Superior, Vicarious Liability, and Whether Others Are Liable
- Liability For Employee's FCRA Violations? Liability For FCRA Violations by Third Parties?
- FCRA Preemption, Immunity, and Qualified Immunity
- FCRA Preemption: 15 U.S.C. 1681t[b][F] and Related Discussions
- FCRA Qualified Immunity: 15 U.S.C. 1681h[e] and Related Discussions
- States/Govermental Immunity From FCRA Claims?
- Jury Voir Dire, Instructions, Verdict Forms, etc.
- Jury Instructions and Jury Verdict Forms
- Jury Questionnaires, Voir Dire, Jury Selection and Jury Bias
- Credit Card Issues
- Credit Card Liabilities
- Do You Have a Right to Bring Claims and How Long Do You Have?
- Statute Of Limitation: 15 U.S.C. 1681p
- Standing to Sue
- Credit Scores, Adverse Action Codes, and Other Report Codes
- Credit Scores, Adverse Action Codes, Risk Factors, Denial Codes and Other Scores and Codes Supplied by the Credit Reporting Agencies
- The Mechanics of Credit Reporting
- Public Records Reportings [Non-Bankruptcy]
- Bankruptcy Reporting
- Student Loan Credit Reporting
- Metro Tape [I and II]: Standardized Credit Reporting Formats Used by the Credit Industry
- Defenses Asserted by Credit Reporting Defendants
- What Law Applies? Problems Barring Use of the Court and Law
- Arbitration, Forum Selection, Choice of Law, Choice of Venue and Other Adhesionary Clauses
- Conflicts of Laws Issues in FCRA and Related State Law Issues
- Standing and Statutes of Limitations
- Statute Of Limitation: 15 U.S.C. 1681p
- FCRA Legal Forms [Suits, Discovery, etc.]
- Discovery: Interrogatories, Requests For Production of Documents, Requests to Inspect, Requests For Admissions, Deposition Notices, Subpoenas, Deposit
- FCRA Sample Pleadings: Complaints, Motions, Oppositions and Other Standard Lawsuit Filings
- Defenses Frequently Asserted by Defendants to Consumer's Actions
- FCRA Class Actions and Class Issues
- FCRA Class Actions
- Special Evidentiary Issues: What is Evidence?
- Evidentiary Issues in FCRA Cases
- Expert Witnesses, Special Issues and Daubert and Related Challenges
- Appellate Issues, Rules, Law, Etc.
- Defenses Asserted by Industry and Abuse Stories
- Defense Counsel Abuses and War Stories
- Law Outlines: Various Topics
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