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Everything posted by sadinca

  1. it would also be better if you create a separate threat just for the Portfolio, so we dont confuse one with the other. unless, you want to follow the sames steps as the UNIFUND since it is farther along, and just refer to Portfolio when needed. up to you.
  2. for the portfolio one, if you would like, you can serve a BOP even before filing your GD.
  3. the attachment are not necessary at this point, you can remove them. but its a good thing to know, they have an even bigger hurdle to overcome that the regular JDB purchasing directly from OC.
  4. keep in mind image number 6. appears that this debt changed hands quite a few times before ending up in UNIFUND hands. they have to produce all bill of sales from each transaction. there may be on your package, but i didnt see them here.
  5. here is a template of the BOP used around here. Bill of Particulars request.doc replace relevant information with your own personal information and send it in the mail with a Proof of Service form.
  6. I was at my kids soccer game, sorry I missed some questions. In regards to CCP 96 & 98 they are no affirmative defense for those. Plaintiff will have to serve you a CCP 98 of they want to authenticate any business records from OC with out producing a live witness closer to trial at about the same time you will serve ccp96 request
  7. OC is orange county I meant to say the judge may be the one and only to handle collections in your county
  8. Just say plaintiff failed to comply with CCP 1788.53(d). This will have to be raised as a fact. Something along the lines of Defendant is a victim of identity theft and does not owe this debt.
  9. Caselaws state defendants are not entitled to a BOP on account Sated. Since the account stated theory relies only on the charge off statement therefore there's is nothing to itemize. Let plaintiff object.
  10. Here is the OC, we only have one judge in charge of collection lawsuits. He may be non partisan but he sure is pro jdb. The judge you mention may be the one and only
  11. I don't think this complaint is verified. It don't think this satisfies CCP 446. A verification would have to be signed by one of Midland Lawyers in San Diego starting the allegations within the complaint are true, or believe to be true. I don't see how a jdb could assert the allegations to be true, when jdb came in the picture after the event.
  12. I probably wouldn't use that if i were in your shoes. first, due to the recentness of the identity fraud. second, the burden of proof would be on you to provide police reports, or records or communications made by you to the original creditor disputing the account. at this point, in my opinion, it would be better to maintain the strategy of denying having any knowledge of the account, than claiming the account is the product of fraud. @BV80 @shellieh98 @RyanEX what do you guys thing?
  13. you are doing a great job doing your own research, asking good question, and grasping the process. Midland should be afraid of taking your case all the way to court.
  14. CCP 454 or Bill of Particulars is not considered discovery, but rather an amplification of the complaint. Midland will most likely reply to the BOP demand with boilerplate objections and caselaws as to how BOP is inappropriate to an Account Stated cause of action.
  15. This is a good question. Midland is using the Account Stated theory on the claim. on this theory, Midland has to proof that you owed money from previous transactions, that by word or conduct you agreed to the amount stated in the account, that by word of conduct you promised to pay the amount. Midland would only need to provide an statement reflecting a previous transaction, or payment, and the charge off statement establishing the debt. unfortunately for all of us who have been sued on an account stated theory is California Courts have established precedence stating "the agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. if the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct and rendered." Zinn, supra, 271 Cal.App.2d "An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the lanance struck is due and owing from one party to another. when the account is assented to, it becomes a new contract. an action on it is not founded upon the original items, but upon the lance agreed to by the parties..." Inquiry may not be had into those matters at all. It is upon the new contract by an under which the parties have adjusted their differences and reached an agreement." Gleason v. Klamer (1980) 103 Cal. App.3d so in short, you could request an itemization of the account, but Midland is not required to produce it.
  16. in your post above, under First Cause of Action paragraph 5, "^ Defendant made last payment on account in 12/16 to Bank B." i think this satisfies the 1788.52 (a)(3) requirement. as to 1788.52(d)(1) you mention the attached initial notification did not meet all the requirements. A violation would get Midland fined up to $1K but i wont get the case thrown out.
  17. I can't recall this particular CCP well review them tomorrow. However, Violations would most likely produce sanctions rather than a dismissal is successfull.
  18. In your place I would use the general denial form PDL 050? I don't have the form in my phone but tomorrow I can pay it tomorrow.
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