Motion For Judgement On The Pleadings Or For Summary Judgement (Midland Junk Debt)?

[shen86]

Hi,I was sued by midland for a credit card debt a little over a year ago.I responded
to all their paperwork & interrogatories in which I refuse to give my SS#.This was approximately last nov,2010 now all this time has gone by,almost a year and they send me this motion.I thought & assumed they had either decided not to pursue since I heard nothing from them in weeks or months within the timeframe although I didn't file a dismiss without prejudice at that time?
How do they get this motions after almost a years time? What do I do countering this motion? On the motions they have in tiny writing,this is an attempt by a debt collector to collect a debt,,etc the court where filed,docket,,etc and course of action.They state the evidence of showing to the court thedefendant requested & recied a credit card from providian/aspire visa,midland is current owner
and sum I owe them(exhibit a).(2) I failed to pay(exhibit b) (3) The credit agreement & terms (exhibit c) .Also the affidavit of paula hansen stating she has access to pertinent account recs for midland credit management.They have no checks but an items charged list.I am currently on fixed income sent them proof of that & I do believe it is exempt..I do own a home which I presume they want the judgement for the lien? There is no court date schedule but why wait almost a year then motion are they pass some statue? It does not tell me to respond to motion sent to me first class mail? Someone had told me they were not allowed to do business in mississippi or thru attorney here,& there were lawsuits against them practicing here. Any advice or help would be appreciated. Thanks

[jasper]

Big business does not move fast but it is also done to heighten stress, All businesses must hire attorney to go to court it is not a real person who would represent it? Unless served by the court this is another ploy to collect, nothing to fret about. When if served be sure to answer complaint and go to court.

[hillocke]

It's not unusual for a suit to sit idle, especially with a lawsuit mill like MCM. Every state has a time period where if a pending suit sits idle for too long then the defendant can file a motion to have the case dismissed for lack of action by the Plaintiff for the time period allowed by the state. Generally in most states that time period is a year or two. But that point is moot now since MCM had recently filed that motion.

With that motion they are basically saying that they have all their ducks in a row and they are requesting the judge go ahead and give them the judgment against you. You would have to file an opposition to their motion for a summary judgment. In your opposition you'd have to show that there is material issue(s) that remains undecided for the court to rule on. The issue(s) you bring up would have to be genuine and you'd have to support them.

For example, if it had been 3 years or longer since you defaulted on the card and the 3 years were up "before" the date they filed the suit then the alleged debt is past the statute of limitations (SOL). The date they filed the suit stopped the SOL from running so you would only count from your default until that date they filed. If it had been 3 years or longer since you defaulted, and before they filed, then you could claim an Affirmative Defense of SOL as a defense.

Another example is the affidavit of debt that they are using. In a normal situation a person would file a motion to Strike the Affidavit of Debt on the grounds that the affiant (paula hansen) works for MCM and not for the original creditor, has no knowledge of the original creditors records and business practices, etc., etc., etc. But as I said, that is in a normal situation. Lately MCM has been sued by many states and private individuals for robo signing affidavits. If your affidavit had been robo signed then that is certainly something that you need to make the court aware of. You will have to do some digging to find out if it actually had been signed by Hansen or not, and, if she actually had the time to read through all of the records. Some of the MCM robo signers were signing 400 affidavits a day, that leaves absolutely no time to actually learn about what they were signing.

Another example is to throw doubt on the amount that they are 'claiming' you owe.

As for the credit agreement, is it one that actually has your signature on it? Whether it does or not you need to check the date that the credit agreement was printed. If it was not printed in the same year as the agreement you signed, or electronically signed, then you can throw doubt on that agreement as well. You cannot be held under the terms of an agreement that was printed years later from when the original agreement was printed as terms are subject to change. I mentioned if your signature was on it, signatures in the hands of collectors have been known to jump from one paper to another. That is one other reason to check the date the agreement was printed. If your 'signature' is on an agreement that was printed a year or more after the date you applied and received the card then, yeah you got it, forgery is in play.

You need to look up your states Rules of Civil Procedure (RCP). You will be able to learn more about how to file your opposition and the time allowed to have it filed.

You might go to the free site I've listed in the source box and do some reading/ask questions in the Forums. You will be able to learn more about how to write up your opposition, your motion to strike the affidavit, how to write up your affirmative defense of SOL (if applicable), learn how to find out if the affidavit was robo signed, how to throw doubt on the amount they are claiming, the status of MCM and your state, etc., etc., etc.

edit
I don't know why they would have a second affidavit, unless there was something sketchy with the first. As for the second where you found an affidavit with her signature, if you can you might make a copy of that affidavit. You might also find a 'consumer credit' lawyer that will give a free first consult and show the lawyer all of your paperwork and the copy of that other affidavit you'd found. If the lawyer feels that you have a solid defense, and/or, there is something hinky going on then the lawyer may take the case on a contingency basis. If you don't have a lawyer you might go to naca.net (National Association of Consumer Advocates) and look for a consumer credit lawyer in your area.

Keep in mind that no matter what you have as a defense, or have on them, your strongest defense would be the SOL defense. So if you don't know whether it's past SOL or not then check into it. As I stated above, the SOL begins with your default and runs for 3 years (unless they filed the suit before the 3 years were up). If it's SOL then use it.

[iker]

When you responded to the original lawsuit summons, I suspect none of your response was a legal defense to not paying the debt. Things like being out of work or family obligations or other personal drama are NOT legal defenses to not paying.

A summary judgment request is actually faily common and unless you have an actual legal defense, there isn't a whole lot you can do. The suit was probably filed before the Statute of Limitations (SOL) expired. You could try claiming that the debt is beyond the SOL. Check your state: http://www.bcsalliance.com/y_debt_sol.html. But that might not help.