Midland Credit Management, Inc Pre-trial Questions after dispositive Motions Deadline

[Helpfuldaughter]

I originally had a Pre-trial for this past August but it was cancelled giving parties 60 days to complete discovery and leave to file dispositive motions until 11/20 for Review. I now have a pre-trial scheduled for February 1st. I never received any discovery or motions from the Plaintiff. Not sure how to prepare for this new pre-trial. Any help you be so greatly appreciated. The case is for a Capital One account that does not qualify for arbitration.

Also the only evidence they have is 2 Statements. There is no copy of Bill of Sale or any affidavits. Won't I be able to use the lack of evidence if it goes to trial?

 

[Zigner]

I originally had a Pre-trial for this past August but it was cancelled giving parties 60 days to complete discovery and leave to file dispositive motions until 11/20 for Review. I now have a pre-trial scheduled for February 1st. I never received any discovery or motions from the Plaintiff. Not sure how to prepare for this new pre-trial. Any help you be so greatly appreciated. The case is for a Capital One account that does not qualify for arbitration.

Also the only evidence they have is 2 Statements. There is no copy of Bill of Sale or any affidavits. Won't I be able to use the lack of evidence if it goes to trial?

1: What US state are you in?
2: Did you send any discovery requests?
3: Why do you believe that 2 statements isn't enough for them to obtain a judgment?

 

[Just Blue]

I originally had a Pre-trial for this past August but it was cancelled giving parties 60 days to complete discovery and leave to file dispositive motions until 11/20 for Review. I now have a pre-trial scheduled for February 1st. I never received any discovery or motions from the Plaintiff. Not sure how to prepare for this new pre-trial. Any help you be so greatly appreciated. The case is for a Capital One account that does not qualify for arbitration.

Also the only evidence they have is 2 Statements. There is no copy of Bill of Sale or any affidavits. Won't I be able to use the lack of evidence if it goes to trial?

What state?

 

[zddoodah]

I originally had a Pre-trial for this past August but it was cancelled giving parties 60 days to complete discovery and leave to file dispositive motions until 11/20 for Review. I now have a pre-trial scheduled for February 1st. . . . Not sure how to prepare for this new pre-trial.

"Pre-trial" is an adjective that refers to anything that happens before a trial. When you refer to "a pre-trial," I assume you're talking about some sort of pre-trial conference. However, you didn't tell us what level of court in what state the case is pending, so there's no way for anyone here to know whether any preparation is needed. Also, you implied that a collection agency is suing you for an unpaid credit card balance, but it would be good to confirm that, tell us how much money is at issue, and tell us whether you have any valid defenses.

I never received any discovery or motions from the Plaintiff.

Does this mean the plaintiff did not serve discovery requests on you or that the plaintiff did not respond to discovery requests you served? If it's the latter, did you timely file a motion or motions to compel?

Also the only evidence they have is 2 Statements. There is no copy of Bill of Sale or any affidavits. Won't I be able to use the lack of evidence if it goes to trial?

The plaintiff has the burden of proof. A debt collector will typically call witnesses who can testify as to the authenticity of documentary evidence so that the documents can be admitted pursuant to the business records exception to the rule against hearsay. How do you know that "the only evidence [the plaintiff has] is 2 Statements"? What about witnesses? What does the reference to a bill of sale mean? Why would you expect affidavits (especially since you said the plaintiff made no motions)?

Can we reasonably assume that the plaintiff is represented by a lawyer and that you have no reason to believe the lawyer doesn't know what he/she is doing (i.e., that he/she is fully familiar with your state's rules of civil procedure and rules of evidence and the court's local rules)? How's your level of familiarity with those rules?

Won't I be able to use the lack of evidence if it goes to trial?

If the plaintiff rests its case and you don't believe it has met its initial burden, then you can move for dismissal.

 

[Taxing Matters]

I never received any discovery or motions from the Plaintiff.

This is a bit unclear. Do you mean that you never received any discovery requests from the plaintiff, or that you had asked for discovery and didn't receive what you asked for? If you didn't ask for discovery, why didn't you?

Not sure how to prepare for this new pre-trial.

Can't help you much there because you have not said in what state and type of court (e.g. small claims court, district court, county court, circuit court etc) this case is being tried nor have you told said what the purpose of the pre-trial hearing or conference is. There are all kinds of things that may be done in a pre-trial hearing or conference. So is this a pre-trial conference or a hearing, and what is the purpose of it? Generally the order setting the hearing or conference will state what the purpose of it will be.

The case is for a Capital One account that does not qualify for arbitration.

Do you mean a Capital One credit card account?

Also the only evidence they have is 2 Statements. There is no copy of Bill of Sale or any affidavits. Won't I be able to use the lack of evidence if it goes to trial?

The statements are evidence. Whether they are sufficient to prove what the plaintiff needs to make the case is impossible to say without seeing the information on them. But assuming they are like the other big credit card issuer statements that I've seen they may indeed be sufficient, assuming the bank's lawyers do what is necessary to have them admitted into evidence. The credit card issuer typically doesn't have the actual sales receipts anymore; most transactions are electronically sent through the card association system (MasterCard, Visa, AMEX, etc) to the issuer. The statement will typically show the date, amount, and the name of the business on the statement. Those statements are sent to you each month, and if you believe that a charge is incorrect, either because you didn't make the charge or the amount is wrong, you have a specific period of time in which to contest the charge. If you don't contest the charge, the fact finder (judge or jury) may assume that the charge is good. If you don't pay the full bill that month, then the unpaid balance rolls over to the next month, and that beginning balance could also be assumed good by the fact finder too. All the plaintiff has to do is prove that it is more likely than not that you owe what it says you owe. It doesn't need perfect evidence. Just enough for the judge or jury to say that, taking all the evidence into account, it appears more likely that you owe than that you don't owe.

 

[Helpfuldaughter]

Sorry didn't realize I had replies. I am in Ohio and it is for a civil case at a local municipal court. It is a junk debt buyer "Midland". I have been sued before and they usually send me a MSJ which I object to and it gets rejected. debt collector dismissed that case before trial. Midland has only sent complaint and last two bills. No bill of sale or discovery. Thinking I should have asked for discovery.