MIDLAND FUNDING SETTLES CLASS ACTION

[ICANHASMUNY?]

NOTIFICATIONS OF CLASS SETTLEMENTS ARE GOING OUT AND ONE CB'r HAS ALREADY RECIEVED ONE

Encore Capital Group, Inc., and/or its subsidiaries and affiliates, including but not limited to Midland Credit Management, Inc., Midland Funding LLC, MRC Receivables Corp., and Midland Funding NCC-2 Corp,

 

 

 

For the purpose of this order, "Class" and "Class Members" refer to: All natural persons

 

(a) sued in the name of Encore Capital Group, Inc., Midland Funding LLC, Midland Credit Management, Inc., or any other Encore and/or Midland-related entity (collectively, "Midland"),

 

( between January 1, 2005 and the date the Order of Preliminary Approval of Class Action Settlement is entered by the Court,

 

(C ) in any debt collection lawsuit in any court

 

(d) where an affidavit attesting to facts about the underlying debt was used by Midland in connection with the debt collection lawsuit.

 

 

There was a separate settlement in maryland where they made a payout agreed to dismiss 10,000 lawsuits which was settled earlier.

 

 

SO,

 

1) if you were sued and attached an affidavit to the complaint or used one to win you may be a class member

 

2) if you have a default judgment on your credit report - and don't have the paperwork, you need to get a copy of everything that was filed in court to see if they submitted a affidavit.

 

3) even if they subsequently dismissed the complaint, you could be a memeber of the class.

[headakes]

Question, in #1 where it states - "and attached an affidavit to the complaint or used one to win.." since I'm kinda clueless when it comes to a lot of the legal stuff and terms, could you possibly clarify what an affidavit would be referring ?

[ICANHASMUNY?]

normally the JDB's don't have any actual records other than the ledger of accounts from the OC.

 

which consists of nothing more that the account #, a name, old addresses, and sometimes the SS #

 

so to be able to assert a claim in court, they file an affidavit - a sworn statement witnessed by a notary public.

 

and they claimit isn't hearsay - that they have an an exemption under the business records rules of evidence.

 

they may pr may not file this with the complaint or if the defendant objects to lack of records, they file the affidavit afterwards.

 

that states they have personal knowledge of the debt, yada, yada, and that the amount shown is true due and owing because we purchased the debt.... yada yada.

 

problem is, they are robo signing these form affidavits printed out by a computer system, the affiant hasn't a clue, and the notary doesn't even witness they guy who signs it.

 

from a previous post -

 

http://creditboards.com/forums/index.php?showtopic=414003

 

Whether through the "You've Got Claims" system or otherwise, Midland receives and fulfills about 200 to 400 requests for affidavits per day. Ivan Jimenez, one of Midland's ten "specialists" in the department that supports law firms, personally signs between 200 and 400 of such affidavits per day. (Ivan Jimenez Dep., Doc. 35, Ex. E at 15). He finds the stack on a printer, signs them, and sends them by internal mail to the notary. (Id. at 16-17 ("Q: Where do your affidavits come from? A: As far as what I deal with, they just come from the printer as far as where we get them")). Mr. Jimenez has the ability to check the accuracy of the information on the affidavit via the computer system and he does, but the percentage of those that are checked for accuracy is "very few and far between." (Id. at 24).

 

Then, after receipt of the signed affidavit from Midland, JBR attached it to the complaint filed in Sandusky, Ohio Municipal Court. When the affidavit is compared to the deposition of the affiant, Ivan Jimenez, it is apparent that the affidavit itself contains many falsehoods.

 

In paragraph 1, the affidavit reads ".I make the statements herein based upon my personal knowledge." It is apparent from the Jimenez deposition that Mr. Jimenez actually had no personal knowledge of Ms. Brent or her account. For instance, while Mr. Jimenez is assigned to support and work with ten law firms, JBR is not one of them, leading to the logical conclusion that he would not have personal knowledge of any matter they were handling. (Jimenez Dep., Doc. 35, Ex. E at 7-8; Id. at 16). It appears to be an entirely random act that he signed this affidavit: he was the signer based entirely on when it came off the printer rather than based on his personal knowledge of Ms. Brent or her account. (Id. at 16-17). Mr. Jimenez never had any contact with Ms. Brent at all, leading to a logical conclusion that he could not have had the "personal knowledge" claimed in paragraph 1. See Id. at 25-26 ("Q: Did you ever have any contact with Ms. Brent, any business contacts at all? A: I did not personally.").

 

In paragraph two of the affidavit, the affiant states:. I have personal knowledge of all relevant financial information concerning Midland Credit Management Inc.'s account number 8524186453, which includes the following information: that the defendant did fail to make payments on the account and that demand has been made for defendant to make payment of the balance owing on the account described above more than thirty (30) days prior to making this affidavit; that the attorneys representing the plaintiff Midland Funding LLC were retained on Midland Funding LLC (sic) behalf by me or persons reporting to me for the purpose of collecting the delinquent debt owed on the defendant's account number set out above; and that there was due and owing to Midland Funding LLC the sum of $4,516.57. (Jimenez Aff. ¶ 2). As is evident in the discussion supra regarding paragraph one of the affidavit, Mr. Jimenez has no personal knowledge about the Brent account. He was not familiar with this account, did not know the last time a payment was made and did not know the outstanding balance. The paragraph also represents that the law firm, JBR, was hired by Mr. Jimenez or one of his employees. However, the following exchange during the deposition makes clear this is not true:

 

Q: So were you aware when you signed this affidavit that it was going to be used as part of a collection action in a lawsuit?

 

A: I was not.

 

Q: Are you aware of any other reasons that affidavits are completed, except for the collection actions that are filed in the courts?

 

A: I wouldn't know what the firm uses the affidavits for.

 

Q: So you simply sign them?

 

A: Yes.

 

Q: You work for Midland Credit Management; correct?

 

A: Yes.

 

Q This affidavit lists at the top as a plaintiff, Midland Funding, LLC. What's the relationship between Midland Credit Management and Midland Funding LLC?

 

A: I wouldn't be the best person to ask that question. I don't know.

 

Q: Okay. If you look at paragraph 2, four lines from the bottom of paragraph 2, you're attesting to the fact, "that the attorneys representing Plaintiff Midland Funding LLC were retained on Midland Funding LLC behalf by me or persons reporting to me for the purpose of collecting the delinquent debt." Is that what it says? Did I read that correctly?

 

A: Yes

 

Q: When did you retain the attorneys representing Midland Funding LLC?

 

A: I don't know when the people in my department retained the attorneys.

 

Q: Did you personally retain the attorneys?

 

A: I did not.

 

Q: Which persons in your department did retain the attorneys?

 

A: I wouldn't know specifically.

 

Q: Are these -- how many people do you have reporting to you?

 

A: I have zero.

 

Q: Do you know the names of any persons in your department or any persons in Midland Credit who actually do have the responsibility of retaining attorneys?

 

A: I don't know who in my department would do that.

 

Q: Would there be someone from another department that would do that?

 

A: I wouldn't know. (Jimenez Dep. at 19-21).

 

Thus, there are two patently false claims within paragraph two: first that Mr. Jimenez had any personal knowledge regarding Ms. Brent's debt, and second, that Mr. Jimenez was involved with the decision or act of hiring JBR to pursue legal action.

 

Paragraph three describes how Midland acquired the debt from Citibank, and if it is read alone, it only states a fact that is very likely true. However, when read in conjunction with paragraph one ("I make the statements herein based upon my personal knowledge"), it is apparently false. The issue of the affiant's knowledge was raised in the deposition:

 

Q: Well, it says in this affidavit that, in number 3, "That Plaintiff's predecessor in interest sold and assigned all right, title, and interest in this account to the plaintiff." So if it was sold to the plaintiff, my assumption is it was purchased by the plaintiff. And the question I have is, did you have any role or were you involved in any way, shape, or form in the purchase of this account?

 

A: I was not.

 

Q: Do you know anything about the terms of the purchase of this account?

 

A: I do not. (Jimenez Dep. at 21-22). Thus, the statement in paragraph three, however true or not, cannot be based on personal knowledge.

 

Paragraph five is also of concern. It asserts that Ms. Brent is neither a minor nor mentally incapacitated, which are facts that are probably true. However, the affiant bases those conclusions "upon business dealings with the defendant(s)," which is clearly not possible since he had no contact with Ms. Brent. See supra.

 

If this is not enough, the affidavit is improperly sworn, as evidenced by the deposition:

 

Q: You mentioned earlier, when I asked you about that, you signed these affidavits and had them notarized. Was the notary present in the room when you were signing all the affidavits, or do you sign them and give them to the notary?

 

A: I sign them and give them to the notary. (Jimenez Dep. at 15). Minnesota Revised Code requires that "an oath... shall be administered... [t]o affiants[.]" Minn. Stat. Ann. § 358.07 (West 2004).

 

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.

 

 

 

above was from the MSJ -

 

now it has been settled - after more motions, amended complaints, counterclaims and etc. ad nauseum.

[FormerlyLost]

I got the class action suit in the mail just yesterday. The payment to the plaintiff's in approximately $10/each. Midland was my nightmare and am thinking if I even just get the $10 it's worth it, although it cost me over $1K in attorney fees fighting their bogus judgement against me.

[janeemac]

I received one in the mail yesterday, too. Does this mean the default judgement will be dismissed? I'm so confused.

[jack1212]

With as many as Resurgent/LVNV sends out, i dont see how they haven't been busted yet.

[NAN101]

I received one also. They just filed suit against me in the last 30 days. Ten whole dollars - LOL

[jack1212]

Just some input.

 

I know a lot of people realize that class action suits hardly EVER get past 0.10 cents to $1.00 when over. But im asking, please dont focus on that. I want to see people do whats right and bring down scumbags like this regardless if you get 2 cents or $200.

 

Thats all. Thanks.

[ICANHASMUNY?]

Agreed - we may only get a pittance -

 

but they have a spotlight on them they can't crawl out of.

the Min AG has filed suit regarding the perjury surrounding the false affdavits. 5 year SOL. on that.

 

and the TX and CA AG is looking into it also.

 

However, the class action settlement in Maryland was way better

 

10,000 suits were dismissed.

 

when you start talking about your noitces be sure to watch which state you are in - totally different settlements.

 

you can opt out, and preserve your right to sue ( if it's been within the past year - FDCPA SOL)

 

you can object to the settlements - stateing that 10 bucks doesn't cover the issue -

 

especially if they sued and disimissed because you challenged them your lost time at work, time spsent in answering etc.

 

or you can join the class action and get your $10

 

if you do nothing, you have no other rights

 

 

if anyyone wants to do anything about LVNV funding and Resurgent,

 

 

I suggest you find the cases they have filed recently - check for ones that were contested

 

and go down to your local courthouse

 

pay for copies of all the affidavits LVNV filed on those cases

 

and see if the Notary Public signatures match from one affdavit to another.

 

I've heard that they don't...... at least not in Phili. , PA.

 

Susan A, Tobie and/ or Nikki's . - (in some states you can get these online )

 

if they don't, send copies to the SC AG and the SC SOS complaining about abuse of a notary seal.

 

& file complaints with your state AG too.

[fatboytx]

Midland filed suit in Feb but I haven't been served. Received class action settelment letter Friday. What does the letter do for me?

[joan]

Midland filed suit in Feb but I haven't been served. Received class action settelment letter Friday. What does the letter do for me?

 

I may not be the best person to answer,however I believe in feb, they did not have a license in md, not sure of the other states, thus they legally cannot sue you, I have a default judgment from jan of this year, and have made 2 payments already, I am reading to see what my next step will be, also receved the class acation letter, just not clear if additional cases will be dismissed , or if I have to request the courts to reopen the case

[headakes]

I received one too today, wish it would have also said they'll be deleted from my CR's ASAP!.

[ICANHASMUNY?]

I received one also. They just filed suit against me in the last 30 days. Ten whole dollars - LOL

 

 

so, I forgot - did they file any affidavit wiwth the complaint?

[GonnaGetEm]

My MCM battle has been posted on this board and particularly in detail over in HIBS, so the background is readily available for those who really care to know it...

 

suffice it to say here that I got one, and forwarded it to my lawyer who was supposed to be the one receiving any and all contact from and in regards to MCM on my behalf, due to our actively litigious nature.

 

 

 

Everyone please note the part that says:

 

"by doing nothing you will still be bound by the terms of the setlement agreement and any order the Court issues, but you will NOT receive a cash payment"

 

 

So, RESPOND REGARDLESS!!

[GonnaGetEm]

Forgive me for posting my same comment here as in one of my threads in HIBS, but I just thought it might get some more bright CB warrior brains turning on this thought I had...

 

I find it really interesting that it says in this letter that "You received this notice because you have been identified from the Defendants' records as a person whom Defendants filed a lawsuit [against] that may have included an affidavit between January 1, 2005 and March 11, 2011."

 

This is interesting because if they got my name and contact information "from the Defendants' records" then why couldn't "the Defendant" (Midland) ***USE*** that CORRECT contact info to let me know I was being sued in the first place before getting the default judgment???

 

 

I wonder how many of you found out about a default judgment by Midland, only to go to the court clerk and find a file that had paperwork with some other or past address of yours on it. Because, if you had that happen but still get a settlement letter to your current address (without a forwarding notice from the post office on it), then they HAD your current address but chose not to use it, and that is messed up!! :angry:

[ICANHASMUNY?]

Forgive me for posting my same comment here as in one of my threads in HIBS, but I just thought it might get some more bright CB warrior brains turning on this thought I had...

 

I find it really interesting that it says in this letter that "You received this notice because you have been identified from the Defendants' records as a person whom Defendants filed a lawsuit [against] that may have included an affidavit between January 1, 2005 and March 11, 2011."

 

This is interesting because if they got my name and contact information "from the Defendants' records" then why couldn't "the Defendant" (Midland) ***USE*** that CORRECT contact info to let me know I was being sued in the first place before getting the default judgment???

 

 

I wonder how many of you found out about a default judgment by Midland, only to go to the court clerk and find a file that had paperwork with some other or past address of yours on it. Because, if you had that happen but still get a settlement letter to your current address (without a forwarding notice from the post office on it), then they HAD your current address but chose not to use it, and that is messed up!! :angry:

 

that's the most common scam they use - they have access to your credit report and current address. but they send the summons to the old address the OC gave them.

 

and when you catch them at it , is where you have grounds for a motion to vacate and counterclaim for abuse of proccess.

[GonnaGetEm]

Which is why I won in my motion to vacate and dismiss against them, and is why I now have to decide whether to stay a member of this class for the $10 or to exempt myself and sue in Federal as originally planned.

 

Decisions, decisions.

[GonnaGetEm]

*bump* I saw others posting about this again today so wanted a thread available to keep it all in one place.

 

The letter says to go to www.brentsettlement.com for more info.

 

On that site it says if you didn't get a letter but know you're a member of the class (Midland has used a false affidavit in a case against you in the past or has one pending right now) then you can still submit a claim form --

 

"Class Members who did not receive a Notice and Claim Form and know that they are member of the Class may file a Claim Form online. " - https://secure.ntcsol.com/softniche/easyclaim/Forms/CaseDetails.aspx

 

You can read three of the key documents here - https://secure.ntcsol.com/softniche/easyclaim/Forms/KeyDates.aspx

[ICANHASMUNY?]

Everyone needs to file an objection, and exclude themselves, not a claim.

 

it's not a final settlement - it's only preliminarily approved.

 

if enough folks object to it and exclude themselves,

 

then the judge may not approve it and revise the settlement.

 

Any class

members who wish to object to the settlement must submit an objection in writing, prior to June 1, 2011 to the Clerk of the United States District Court for the

Northern District of Ohio, Western Division, and must serve a copy of such objection on counsel for Plaintiffs prior to that date. Any objection must include: 1) the

name and number of the case; 2) the name and address of the objector ; and 3) a statement of the reasons why the objector believes that the Court should find

that the proposed settlement is not in the best interests of the Class.

let's say that midland sued you , you objected and they voluntarily dismissed without prejudice.

 

if you are part of the class, they could sue you again bdause you gave up all your defenses

 

read section D; releases

 

https://secure.ntcso...ntAgreement.pdf

[GonnaGetEm]

*bump*

 

this deserves to be kept on the front page for awhile because so many people here have dealt with these guys in the time frame this suit covers (January 2005 - March 2011).

[Garfield67]

The links don't work. My husband got the same letter/postcard, but I didn't receive one. Is this a legit suit and how do I file for myself as well.

 

I tried the link the letter provides but that doesn't work either. www.BrentSettlement.com .

 

 

 

 

 

*bump* I saw others posting about this again today so wanted a thread available to keep it all in one place.

 

The letter says to go to www.brentsettlement.com for more info.

 

On that site it says if you didn't get a letter but know you're a member of the class (Midland has used a false affidavit in a case against you in the past or has one pending right now) then you can still submit a claim form --

 

"Class Members who did not receive a Notice and Claim Form and know that they are member of the Class may file a Claim Form online. " - https://secure.ntcso...aseDetails.aspx

 

You can read three of the key documents here - https://secure.ntcso...s/KeyDates.aspx

[ICANHASMUNY?]

I just tried it and it works. ?

 

 

[ICANHASMUNY?]

38 State Attorney Generals oppose the settlement terms of the class action

 

http://www.reuters.com/article/2011/06/03/encore-settlement-idUSN0316029020110603

 

 

Under any interpretation, the ten-dollar-per-class-member settlement is not fair, reasonable or adequate to address the harm incurred," the attorneys general, led by New York Attorney General Eric Schneiderman, said in the filing in federal court in Ohio.The attorneys general, from states including California, Ohio and Massachusetts, also said the agreement unfairly forces class members to release any claims against Midland, allowing the company to pursue claims against plaintiffs.

 

"The settlement strips class members of their right to defend against existing lawsuits and to seek to vacate judgments obtained through defendants' use of false and misleading affidavits," the attorneys general wrote.

 

 

Exactly why I said to opt out and preserve your rights. they just say it so much better.

 

and having 38 AG's say it all at once is pretty good too...

 

 

 

[ICANHASMUNY?]

from Encore's various SEC 10K filngs ; Public information posted at the SEC.

 

 

On November 2, 2010 and December 17, 2010 two national class actions entitled Robinson v. Midland Funding LLC and Tovar v. Midland Credit Management, respectively, were filed in the United States District Court for the Southern District of California. The complaints allege that our subsidiaries violated the Telephone Consumer Protection Act (“TCPA”) by calling consumers’ cellular phones without their prior express consent. The complaints seek monetary damages under the TCPA, injunctive relief and other relief, including attorney fees. In December 2010 and January 2011, we filed motions to dismiss or stay these cases. On April 13, 2011, those motions were denied.

 

 

 

On January 6, 2010, the Office of the Attorney General of the State of California, the “California Attorney General,” issued a subpoena to us to answer interrogatories and to produce documents in a proceeding entitled In the Matter of the Investigation of Encore Capital Group, Inc., Midland Credit Management, Inc. and Affiliated Persons and Entities concerning our debt collection practices and related topics. We have and intend to continue to cooperate fully with the California Attorney General in response to this subpoena, subject to applicable law

 

On January 12, 2011, the Office of the Attorney General of the State of Texas issued a civil investigative demand to us to produce documents in an investigation of our methods of collecting consumer debts in the State of Texas and related topics. We intend to cooperate fully with the Texas Attorney General in response to this subpoena, subject to applicable law.

 

 

On March 28, 2011, the Office of the Attorney General of the State of Minnesota filed a motion in the United States District Court for the Northern District of Ohio, seeking clarification of an order granting preliminary injunction against parallel litigation (“Order”) issued by that Court in connection with the case captioned Brent v. Midland Credit Management, Inc et. Al. The Minnesota Attorney General sought a ruling clarifying that the Order did not prevent it from filing a complaint against us in Minnesota state court concerning our debt collection practices and related topics. We intend to cooperate fully with the Minnesota Attorney General in response to any complaint that might be filed, subject to applicable law.

 

 

[clambert1273]

 

I love this more and more...