Knoxville, Tennessee
5 comments

Midland bought a credit card account that I supposedly owed. The account was nearly six years owed. In 2007, I discovered their claim on my credit report and requested (registered mail) verification under the Fair Debt Collections Practices Act (FDCPA). They never responded.

Early in 2009, I received a summons to court. This is in Tennessee. The only verification included in the suit was an affidavit from an employee at Midland -- someone who had no knowledge of the underlying credit card contract.

I checked for Court Rules and followed them and the FDCPA. I denied that I owed the debt; if I did owe a debt, the amount claimed was incorrect; and the legal action on the debt was barred by the Statute of Limitations.

I countersued under the FDCPA. It's not permissible to bring suit for collection before debt is verified. Also, Midland put libelous information on my credit report, caused me emotional distress and loss of time.

Finally the trial date came. Midland immediately withdrew their suit when I asked to cross examine any Midland witnesses regarding verification of the underlying contract (all credit card suits are contract disputes and require an agreement in writing as the basis for any suit). The attorney tried to testify for Midland as he was the only one in court. I asked the court to disregard the testimony as the attorney had no knowledge of the record keeping procedures within Midland. The judge asked more than once how Midland had brought suit without proof of a debt. The attorney could not answer that.

The attorney argued that Midland owned the debt and was not a debt collector under the FDCPA. I countered that Midland was not there to be cross examined in that regard, so there was no proof that they were not a debt collector. I also showed where Midland does practice the "art" of debt collection.

The judge could award me up to $1000 under the FDCPA without my having to prove damages. I did show him where I had received negative credit actions due to Midland's adverse credit report. I could not prove money damages, though.

The judge said he couldn't believe that a company would sue without proof of their claim. He then awarded me $1000. That was four months ago. Midland dragged their feet to pay, but I received a check for $1000 today.

Good guys can win.

The lessons: Midland is huge and doesn't have good communications between its many branches (I learned this through calling about where my court award was).

They quite likely have no original documentation on the debts they buy (they may have nothing more than the total you supposedly owed). Computer records are usually horrible. A printout is not proof of a debt. Where's my signature on a contract? Where's my signature for each alleged transaction under that contract?

They definitely do not have first hand knowledge of the contract underlying their purchased "debt" and would not be able to say more than "we bought this debt and were told that it was owed by this person." That's not good enough. Unless the court is totally pro-collector, they will not allow Midland to speak to the validity of the underlying debt. That would require the head of record keeping for the company that originally owned the debt.

By denying the debt/amount/contract/validity, you force Midland into having the employee responsible for their records show up for court. Obviously, the expenses of this would usually outweigh even claims in the $10-15k (with all fees, late charges, interest, costs, etc. on my supposed debt, they were claiming close to $25k). It's the only way they can try to prove the debt.

So, for those of you who know you owe the debt and know the amount claimed is valid, go for a settlement. But, I would bet you do not really know if amount of the total debt is correct (the interest they tack on may not be valid). For that single reason, you can deny the debt. They have to be accurate in the amount sued for, and close doesn't count here.

In looking back, I should have also sued under the FCRA (Fair Credit Reporting Act). That would have covered their failure to make an accurate report to the credit bureaus. It would have also kept them from possibly getting out of my countersuit because they weren't a "debt collector" under the FDCPA. The FCRA has a similar possible award of $1000 with no proof of damages required. So, one could collect up to $2000 without proof of damages ($1000 under each act).

If Midland doesn't remove every negative report they made on me, I will file suit in federal court under the FCRA.

In the times I went to court for pretrial things, I watched hundreds of people have default judgments signed against them because they didn't show up for court. By showing up and denying the debt, they could have forced the collector to at least settle for less. Then I saw those who came to court and admitted the debt. Most of them were admitting that they owed a debt and they had no idea if the amount was correct. Legally, and without lying to the court, they could have denied the debt.

The attorney for the collector may seem like a nice guy. But, wait until you win a judgment. The Midland attorney left the courtroom in a huff after my award was announced. In doing that, he showed disrespect to the court. I'll bet the judge won't forget that next time :-)

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Anonymous
#1041032

Who was your attorney?

me
#520327

A junk dept buyer only pays pennies on the dollar for your debt that was written off by the original creditor years ago.When the original creditor writes it off they use it for a tax deduction of their own.

Since midland in this case never proved it was his/her debt... Don't make me laugh any more with this cancelled debt issue. What debt? The IRS needs to take midland to court to determine if they really cancelled a valid debt.

Now they are breaking more laws and potentially opening themselves up for another law suit in claiming that they cancelled a debt for you that you never owed. Under Tennessee law they need to produce a contract of assignment that shows among other things exactly how much they paid for that debt. That amount is all they could report ...if... they could even prove that was valid.

But further under Tennessee law is the priciple of self inflicted harm.They didn't HAVE to but that debt!

KSG
#110321

Congratulations.I absolutely love seeing someone take these guys on.

I have a mortgage company in Seattle and have been dealing with collection agencies & original creditors for years. I am currently processing short sales. I know EXACTLY what you are talking about here. Good for you!!!

A little non-related story for you.

A bunch of years ago we were using Airborne Express to send overnight packages. Airborne had a little (unknown) rule if you didn't write the work letter in the area on the airbill for weight, they would bill a minimum two pound rate (you can't even get two pounds in an overnight envelope unless you mail a brick). I added up all the overage charges ($650 bucks or so) and filed suit in small claims court. When attempting to serve the registered agent, they dodged the process server.

Then I get this random phone call from some mucky muck in their corporate office who attempted to intimidate me and tell me I couldn't sue them in small claims court. I told him I most certainly could and I find it amazing he knew everything about the case while denying ever being served.

To say the least, it never went to court and I received a check for the full amount of overage charges plus the cost of the process server.Airborne is no longer in business (amazing how things go around).

bk1000
#102669

a cancelled debt is treated as income and taxed by irs when you pay your taxes this year. midland should have sent you a letter of cancelled debt also. be sure to include the amt on your tax return or you will be held liable for the tax, and penalties for not filing a true return to irs

cjn
#92318

i received a letter form irs stating that midland funding has sent then information on a canceld debt.this account was written off several years ago and i have never heard anything else until now.

what can they do?

are they trying to collect?i"m disable

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