Author Topic: Minnesota - Counter suit against Messerli & Kramer  (Read 1059 times)

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MinnesotaMike

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Minnesota - Counter suit against Messerli & Kramer
« on: June 20, 2017 02:09:36 AM »
First of all, I have to say thanks to everyone in this forum for all of the good info that you've shared.  I have been reading posts and sort of figuring out how I am going to proceed with a small claims court lawsuit I received from Messerli & Kramer/Midland Funding/Synchrony Bank.  Minnesota is a pocket docket state, so I lucked out in that this is going to small claims court--at least I know about the lawsuit because the court sent me the summons.  The amount in question is $1240, so it's not a ton of money, but at this point, I am just angry enough with M&K to see them in court.  I'm also going to counter sue for violating my rights under FDCPA.  Since it is a small claims/conciliatory court, there is no discovery, so I just have to wait until the court date to see what they come up with as their evidence.  I have been preparing my own case and have started making a log of notes that I want to use when I get my turn to speak.  In Minnesota conciliatory court, you can file a counter claim and you have up to 5 days prior to the court date to do so, so in an effort not to tip my hand and give M&K time to get the evidence they might need, I plan to file a couple of weeks before the court date on 8/17/2017.

Below are my notes.  If any of you have any info or advice if you've pursued a similar type of counter suit, I'd appreciate any advice you can give.  I'm not scared or anything.  I may lose my case, but I also know that I compelled the lawsuit because I wasn't conceding to them on the phone when they called.  They are probably assuming that I won't show up for court.  Too bad for them that I have already scheduled the day off from work...

My notes:

5/24/2017 3:58PM – Received phone call from Messerli & Kramer PA regarding Synchrony Bank account.  The representative explained that her firm claimed I owed a delinquent debt and would I be willing to make arrangements to pay before they take legal action.  I explained that I had asked for the debt to be validated, per my right to request under the FDCPA, and she said “ok, we will forward your request to the original creditor,” and the call ended.

5/31/2017 – Checked free credit reports to view recent inquiries and saw that Messerli & Kramer PA reviewed Experian credit report on 3/9/2017, 3/13/2017, 3/15/2017, 3/31/2017.  “Midland Credit Management,” an affiliate of the debt collector, Midland Funding, accessed my TransUnion report on 11/23/2016, 11/24/2016, 2/9/2017 and 4/27/2017 with a note of permissible purpose being “Collection.”

As part of the evidence Messerli & Kramer and its client, Midland Funding should have on hand to prove to this court that they even have a standing to collect this debt, they should be able to produce a written agreement between Midland Funding and Synchrony Bank authorizing them to attempt to collect the alleged debt, as required by Minnesota Statute 332.37, (para. 19) “[No collection agency or collector shall:] attempt to collect any amount of money from a debtor or charge a fee to a creditor that is not authorized by agreement with the client.”

In its attempt to collect a debt, the Messerli & Kramer representative did disclose the call as being an attempt to collect a debt and that any information obtained during the call would be used for those purposes.  Per Minnesota Statute 332.37, “No collection agency or collector shall: (Para. 16) when attempting to collect a debt, fail to provide the debtor with the full name of the collection agency as it appears on its license.”

Messerli & Kramer representatives did not identify Midland Funding, LLC as the licensed collection agency in its call to me.  The law firm led me to believe that it was contacting me in the capacity of a collection agency, and a license search on the Minnesota Department of Commerce's Pulse Portal does not indicate that Messerli & Kramer is licensed to act as a collection agency in the state of Minnesota.  Further, on its website, Messerli & Kramer specifically states that it's firm acts in the capacity of a collection agency, in violation of MN Statute 332.37.16, since it does not have a license in the state of Minnesota.

This also violates MN Statute 332.37, Paragraph 12 which prohibits a debt collector from violating the provisions of the Fair Debt Collection Practices Act of 1977, Public Law 95-109, while attempting to collect on any account, bill or other indebtedness.  FDCPA 15 USC 1692, Paragraph 803 (Definitions), Section 6, when defining the term “debt collector”, states in section (F) that the definition of “debt collector” does not include “any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client.”


I know I need to flesh this out a bit.  I've only been in receipt of the summons for a week now, so I have been doing a little bit of research each night after work when I have time.  I'm tired of these people and am ready to put this issue to bed once and for all, even if I end up losing.

CleaningUp

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #1 on: June 20, 2017 02:59:50 AM »
Attorneys don't have to be licensed as collection agents.  They are attorneys, and the right to represent their clients is part of their law license.  You are misreading that which you are quoting.  One down

The attorneys do NOT have to identify that their client is a licensed in your state.  And BTW, I doubt seriously that Midland neglected to licence themselves in Minnesota.  They make mistakes, and sometimes whoppers, but this isn't one of them.  Two down.

You might have them on the not identifying themselves as debt collectors, but you're going to have to prove your point and overcome the facts outlined in the first paragraph.   Do you have a recording that proves that they didn't identify themselves as debt collectors?  He said/she said is not admissible evidence, nor is it even prima facie evidence on which to state a claim.  Three down.

All lawyers make their money acting as debt collectors.  That they make the claim on their website doesn't trump what the law says about attorneys, their licenses, and their status as debt collectors under the law.  Four down.

You need to do slightly more than flesh this out.  You need to get a case.

With what you have presented here, you are FAR from being able to survive a motion of summary dismissal for your counterclaims.

Not trying to make you feel unwanted, but we also have the obligation to tell you about what you might be able to claim and what you might not be able to claim.

Just thinking you have a case doesn't necessarily mean that actually have one.

Your thinking is also complicated by the recent Supreme Court ruling regarding junk debt buyers not being "debt collectors" at all.





BellEbutton

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #2 on: June 20, 2017 03:03:03 AM »
Quote
Messerli & Kramer representatives did not identify Midland Funding, LLC as the licensed collection agency in its call to me.  The law firm led me to believe that it was contacting me in the capacity of a collection agency, and a license search on the Minnesota Department of Commerce's Pulse Portal does not indicate that Messerli & Kramer is licensed to act as a collection agency in the state of Minnesota.  Further, on its website, Messerli & Kramer specifically states that it's firm acts in the capacity of a collection agency, in violation of MN Statute 332.37.16, since it does not have a license in the state of Minnesota.

Law firms are excluded from the licensing requirement because they are not included in the definition of "collection agency".

332.32 EXCLUSIONS.

(a) The term "collection agency" shall not include persons whose collection activities are confined to and are directly related to the operation of a business other than that of a collection agency such as, but not limited to banks when collecting accounts owed to the banks and when the bank will sustain any loss arising from uncollectible accounts, abstract companies doing an escrow business, real estate brokers, public officers, persons acting under order of a court, lawyers, trust companies, insurance companies, credit unions, savings associations, loan or finance companies unless they are engaged in asserting, enforcing or prosecuting unsecured claims which have been purchased from any person, firm, or association when there is recourse to the seller for all or part of the claim if the claim is not collected.

Clydesmom66

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #3 on: June 20, 2017 03:05:52 AM »
"As part of the evidence Messerli & Kramer and its client, Midland Funding should have on hand to prove to this court that they even have a standing to collect this debt, they should be able to produce a written agreement between Midland Funding and Synchrony Bank authorizing them to attempt to collect the alleged debt, as required by Minnesota Statute 332.37, (para. 19) “[No collection agency or collector shall:] attempt to collect any amount of money from a debtor or charge a fee to a creditor that is not authorized by agreement with the client.”

Adding to the other 2 posts Midland is NOT a collection agency at all.  They are a junk debt buyer who PURCHASED your debt and therefore now are in the same position as the original creditor.  All Midland has to produce is proof they bought YOUR account and they have standing.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

MinnesotaMike

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #4 on: June 20, 2017 03:19:53 AM »
No offense taken.  I wouldn't have posted if I didn't want suggestions, so thank you for that.  I'll just have to do some more research. 

Bruno the JDB Killer

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #5 on: June 20, 2017 01:14:27 PM »
Never mind the fancy legal stuff, Mike. Synchrony contracts have JAMS arbitration. Midland will not arbitrate because of the cost..........close to 5K just to start the case, and 1500 per hour thereafter. And if they're not thereafter what you're thereafter, you're going to be thereafter they're gone. Read up on arbitration (NOT court ADR arbitration or mediation) and your path will be much more clear.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

backpack

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #6 on: June 20, 2017 09:59:40 PM »
+1 re. Bruno's comment

MinnesotaMike

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #7 on: June 21, 2017 11:12:18 PM »
Hey, thanks for that info.  I will look into this.  I just looked at the card agreement for the Synchrony Amazon card and it looks pretty clear to me.  My only questions would be:
  • The arbitration section states that I would need to notify the other party in writing.  The OC is Synchrony, but the debt buyer is Midland.  Would I still write my request to Synchrony even though they sold the debt off?
  • My case is in conciliatory (small claims) court so I don't have the opportunity to file anything with the court.  Basically all of the evidence is presented at the hearing.  If I request arbitration, can they claim that I am not doing so in good faith since I have already been sued and summoned?  It seems like I could list an arbitration request as my counter claim to the small claims court case, no?  Then that leads me back to the first question--would I be requesting arbitration with Synchrony or Midland?

Sorry for the seemingly stupid questions.  I'm an accountant; not a lawyer so I know enough to get myself into trouble, but not enough to really help myself.  Given the amount in question, it's not worth it to seek the advice of a lawyer.  As I mentioned in my original post, I am only fighting this because M&K has just been a pile of turds toward me and I don't respond well to threats and 12 robo-calls before getting one that actually has a person on the other end of the line.  I get that they are just doing a job, but I'm not going to just roll over and take it, so even if I lose, I just want to make sure that they don't win by default because I was too scared to show up to court or whatever.

Thanks again for all of this info.  Much appreciated.

BrokeBob

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #8 on: June 21, 2017 11:55:38 PM »
In my opinion, M&K are the scummiest law firm in the Midwest.  They will lie, cheat and anything they can get away with. Truly despicable people.

Of course they will fight you getting into arbitration.  They have been known to outright lie about the contract and the arbitration agreement in court, so expect that.

It would probably be better if you went ahead and filed in JAMS (that doesn't mean pay them).  Send the notice you are filing to M&K.  That way, when you get to court, you can show the judge or whomever they use for cases like that in Minnesota that you have already filed, and therefore you cannot have waived arbitration. 

Bruno the JDB Killer

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #9 on: June 22, 2017 11:28:58 AM »
You are dealing strictly with Midland. Synchrony is completely out of the picture other than the fact Midland inherited their contract. Midland does not arbitrate; it isn't in their business model to spend five or six figures chasing a grand.

MK can lie all they want; the language in the contract is clear. You have a contractual right to arbitration. If Midland doesn't like that, perhaps they should choose a different business.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

WonderinginWI

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #10 on: June 22, 2017 07:03:26 PM »
What BrokeBob said.

MinnesotaMike

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #11 on: June 28, 2017 12:52:58 AM »
Thanks for the responses, and my apologies for not replying sooner.  I have been in touch with a member of this forum who has given me some good info about her MTC arbitration in her own case and after researching it, and reading your replies, I think I will go ahead and file an arbitration request.  I have a copy of the Synchrony/Amazon agreement that clearly outlines the arbitration agreement, so I'll take that to court with me along with the JAMS filing, and proof of serving on the plaintiff.  I'm not even going to trust a CRRR for that as proof--I will pay a process server to serve the notice on them.  Because it is a conciliatory court/small claims issue, I think the arbitration would be my best bet because I really don't know what they are working with unless I subpoena them for what they plan to use in court.  In Minnesota that requires an attorney and for the amount we are talking about in this case, it is not worth paying an attorney.  I'd rather spend a hundred or two out of my own pocket to get them off of my back.  The rational side of me says that there is no way Midland will pay the minimum $1700 for arbitration to collect on a $1200 debt, but the practical side of me knows that it would be my luck that they would probably use me as an example to set for others who try the same thing.  And it's Hennepin County, Minnesota--more of my luck is that the attorneys at M&K are probably good friends with all of the judges in conciliatory court judging by how things play out in the courts in this area...  Just being cynical.  Hopefully that's not true, but it sure does seem like a "good ole boy" system we've got.

CleaningUp

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #12 on: June 28, 2017 01:40:35 AM »
You really don't need to spend anything more than the money of the CMRRR.  It is a legally self-authenticating document.  You get the green card back...they received it.  PERIOD. 

Don't waste your money...

As for there being no way that Midland will pay the minimum for arbitration?  That's been our anecdotal history here...BUT...

Companies like OCs and JDB do illogical thins all the time.  You'll find out soon enough whether or not they will follow you into Arg.  Don't make assumptions about what they may or may not do.


Bruno the JDB Killer

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Re: Minnesota - Counter suit against Messerli & Kramer
« Reply #13 on: June 28, 2017 12:25:48 PM »
I doubt they'll pay up for an amount that low; it automatically puts them in the red. They do not have money to throw around like Citi and Discover. You don't need a subpoena to find out what they have, discovery provides for that and it's free. Of course engaging in discovery can waive your right to arbitration.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.