The Midland Funding/MCM Affidavit

How to Attack the Midland Affidavit

"A brick is not a wall." McCormick, Evidence § 185 at 436 (2d ed. 1972).
"All in all its just another brick in the wall"   The Wall (1979)Pink Floyd 


Midland Funding does not really exist.  Good luck meeting a Midland employee or anyone that has seen one. Midland operates through Midland Credit Management (MCM).  MCM  operates through law firms in its state attorney network. Mildand talks to the Court through its Midland/MCM Affidavits. So, who is doing the talking or testifying for Midland? It's the Midland or MCM Legal Specialist. The whole case at the complaint stage rests upon this person with little, if any of legal training and no input into the Affidavit the "Legal Specialist" signs under oath.

The Midland Affidavit is the first thing I look at in the Midland complaint. It is their money maker and the thing they say proves you owe them big bucks. See some examples of their Affidavits in the download below. First thing I look for is how the Specialist is being granted authority to talk for Midland?    Then, I review an Idaho case     Stimpson v. Midland Credit Management, Inc. et al (4:17-cv-00431), Idaho District Court, Filed: 10/16/2017 for a great analysis on the authority of the Affiant and the 803(6) business records exception. 

All of the information used by MCM to create the Affidavit comes from the seller of the thousands of defaulted debts the Midland computer purchased and is stored on the AMS (Affidavit Management System). The Affiant's only contact with the Affidavit is when she is handed a stack of them to check and sign. The Specialist's only real task is to go down each paragraph in the document on her desk with the finger of her left hand while clicking a mouse with her right hand to scroll down the AMS information on her monitor. Once she confirms that the sellers information in the AMS is the same as the information in the Affidavit, she signs and dates it.  She contributes nothing to the document she swears under oath is true. See the Deposition of a Midland Affiant on the site for a great review of the process.  

Even though Midland will have the Burden of Proof in Court, judges give Midland great latitude (because you or your client "probably owes the debt) and because Midland can clear out a big part of the Court's docket if the Midland evidence is accepted with minimal review. I have to do all the heavy lifting, bring good arguments and educate the judge to eliminate the Affidavit. 

One thing alone (unless it is  robo signing or something similar) is not going to win this case. You need a wall of evidence to defend the debtor because the reality is that Midland just needs to write their bare bones lawsuit and template Affidavit to win over the judge. Here are some ways I attack the Affidavit:

  1. See the attached deposition of a Midland/MCM Affiant get in the head of the signor of the Affidavit that Midland uses as she explains the process of creating and and signing the Affidavit. 
  2. Below, see a PDF of ways I analyze and attack the Midland Affiant/Affidavit in Court or as a guideline when deposing the Legal Specialist.
  3. I always google the Affiant and Notary's signature. You can get lucky and find variations ( I am saying that kindly). Also, social media is great for depositions or attachments to motions. The thing that seemed so cool for your Affiant to tweet or offer her 3,000 close friends on Facebook just does not show up as well as an attachment to a motion or dep. Nothing's better than deposing an attorney or stiff corporate type and asking him about the beer bong or the "party face" from a picture online.  Priceless!
  4. I google other cases the Affiant has appeared in to show the same template type and lack of uniqueness to your case. If it is the same document and language every time, it is another brick in the wall you are building to show their testimony or evidence sucks. 
  5. Generally, the Affidavit is signed  weeks before the lawsuit is filed. In Michigan they are required to sign it within ten days before the lawsuit. That rarely happens.  When the Affiant signs under oath that everything is true, it isn't because the document states the debt is already being sued and Midland is the Plaintiff and the debtor is a Defendant when the lawsuit has not been filed yet. The Affiant will always give it up in a deposition and tell you the document is prepared for litigation. Generally, documents prepared for litigation lack independence and trustworthiness to merit an exception to hearsay. OUT WITH THE AFF!
  6. The Affiant bases her testimony on her view and personal knowledge of electronic records she has viewed (the AMS).  Proof of the records she relied upon are never attached to the Affidavit. Yet, the Judge will just take the Legal Specialist's word for it unless I speak up and ask that these records be produced-they never are produced without a fight.
  7. Why is Midland a Plaintiff and the debtor the Defendant in the Affidavit when there is no lawsuit filed?  Because, the Affidavit is supposed to be viewed months later when the Midland attorney gets around to filing the lawsuit the Affidavit is attached to. 
  8. What the hell is a Legal Specialist?  
  9. I ask myself who gives the Affiant authority to act for Midland? Review   Stimpson v. Midland Credit Management, Inc. et al (4:17-cv-00431) ( Free Resources Section) for a great approach to killing this Affidavit.  The Affiant is giving herself permission to give MCM permission to authorize the Affiant to speak for Midland who the Affiant is speaking for. Wait, what?  That is what she signs off to. This document has no business proving Midland owns the debt. But again, you got to get it by the other Plaintiff in the case-The Judge.
  10. The Affidavit does not have the name of your client anywhere in the body of the document. That's because the form is a computer template populated with the minimum amount of debtor information. Generally all the information is created by the Seller of the debt and not Midland.Midland or MCM. The Legal Specialist has none of the  personal knowledge she claims to possess in the Affidavit someone else created. 
  11. Speaking of personal knowledge, I familiarize myself  with the rules on the business record exception to hearsay. 803(6)  on each case. Judges and most lawyers forget that Hearsay is the General Rule. None of these Affidavits merit any exception.But judges are smart. If they kick out the Affidavit, the case will linger in their docket a lot longer. I have to know the rules and cases concerning this exception.  See the cases I have in my Free Resources Section.
  12. Midland does not want their Legal Specialists depose. In he deposition,  it becomes quickly obvious that there is nothing "Special" about them. They come off as robots and just repeat the company line. But, push a little and their wall collapses. Second, the Affidavit is a house of cards and resting upon hearsay that the Legal Specialist knows nothing about.  Kill the