Lady Bug

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Posts posted by Lady Bug

  1. Hi all,

    I have a question about language with regard to discovery (Specifically, I'm working on the Defendants first request for the production of documents) in California.

    Specifically, CCP §2031.030 (a)(1) reads as follows: "a party demanding inspection, copying, testing, or sampling shall number each set of demands consecutively." why do they use the word "set."? Maybe you only have one demand (not a set), so I'm confused?

    More confusion: CCP §2031.030 (b) reads as follows: "in the first paragraph immediately below the title of the case, there shall appear the identity of the demanding party, the set number, and the identity of the responding party."  again, I'm confused by set number? And why would that go in a paragraph identifying the demanding and responding parties to a discovery request? Do they mean to put forth the number of discovery topics you are about to list?

    Thank you in advance for your answer!

  2. Hi all,

    with regard to my case, I noticed that the bill of sale does not mention my name or the account number for the alleged credit card debt? There are two black rectangular boxes which have blocked out some information. Furthermore, Comenity Bank is not the original credit card company, as stated in the complaint.  (See Below document) Here's my question: in my "first request for production of documents" should I specifically ask for the non-redacted bill of sale and documents from the real original credit card company?

    I also noticed that the "affidavit of sale by original creditor," has some problems (See below document):

    #1 it was signed by the president of committee the bank in Utah (I'm in California). So I'm wondering how she is going to be available for subpoena service within 150 miles of my city in California? It seems like a major problem with their case to me. Am I wrong?

    #2) the affidavit of sale states "[the] SELLER sold (or caused to be sold) a pool of charged-off accounts to Midland funding...." Again, I don't see my name or account number anywhere in this document. So how do I know that my account was included in this pool? It seems like another major problem with this case to me. Am I wrong?

    #3) with regard to #2), should I specifically request proof that my account number was included in this pool of charge-often accounts? Or should I bring that up at at trial?

    I think ASTmedic didn't want to tip his hand and didn't ask for specific things like this. Just wondering what the discovery thoughts are.

    Thanks so much in advance!

     

    Bill-of-Sale.jpg

    Affidavit-of-sale.jpg

  3. Hi all,

    I finally received papers from the court and a trial is set for January.  

    I'm a little confused as to how to proceed because M*dland has not started the discovery process yet.

    In fact, I  haven't heard anything from them since they denied my Bill of Particulars last winter. The corresponding address is still their headquarters in San Diego and the same attorney I've been dealing with is still listed as the corresponding Attorney, so they haven't assigned the case to anybody local just yet.

    So my question is how do I proceed? Should I start the discovery process myself and if so, can I just use the discovery document that ASTmedic has generously given us on his thread?

    Thanks in advance!

  4. I apologize (this is my last chance to work on this before I found my answer).

    I would like to attach a few alternative defenses to my answer. I'm scared that if I don't raise them in the answer, I may lose the right raise them at a later date.

    #1) their first written communication with me looks to be full of violations in accord with 1788.52(d).  QUESTION: which alternative defense would this come under?

    #2) because my identity has been stolen (I have proof of this), I would like to leave that open as a defense. QUESTION: which alternative defense would this come under?

    #3) understand that CCP section 98 is our best friend. Is there any alternative defense I need to raise which would help support that defense?

    And finally, when in this process do I file for further information under CCP 96?  This looks like pretty powerful stuff, but it has to be served between 45 and 30 days "prior to the date first set for trial...."  I don't even have a trial date yet, so will I have time to file this, or should I just file it with the answer (to the court, POS to applicant) and request for Bill of Particulars (POS to the applicant)?

    Thank you again so very much and sorry for the bombardment of questions!

  5. I'm sorry, one more question:  I'm going to start working on my demand for a Bill of Particulars, and just read online that a Bill of Particulars is only available for actions that are on "an account."

    The first page of the complaint states that, under "complaint for:" "(1) account stated."

    There are 31 paragraphs listed under that. And that is it.

    Under "on the first cause of action:" there are three paragraphs: unpaid balance, costs of suit, and "such other relief as the court may deem just and proper."

    And that is the end of the complaint. Next come the exhibits.

    QUESTION: so may I assume that this action is based on the "an account" principle, which entitles me to send the attorneys a Bill of Particulars?

    Thanks again!

  6. COULD THIS COMPLAINT BE CERTIFIED?

    Although I've read that these JDB complaints are virtually never certified, after reading through this 40 page document, I did discover this document attached:

    CERTIFICATE OF CONFORMITY

    STATE OF UTAH CITY OF SALT LAKE

    the undersigned does hereby certify that he/she is an attorney-at-law duly admitted to practice in the state of Utah as a residence ofXXXX County of Utah; that he/she is a person duly qualified to make this certificate of conformity. That the foregoing acknowledgment by XXXXXXXX named in the foregoing instrument taken by XXXXX notary in the state of Utah conforms with the law of the state of Utah, being the state in which it was undertaken; and when executed by XXXXX in the manner indicated will qualify as a valid and effective sworn statement in such state.

     

    __________ scribbled signature, dated October 2017.

    Could somebody please let me know, for I know it makes a huge difference with regard to my answer. Thanks so much in advance!

    PS: this "certificate of conformity" came right after a notarized document which was entitled portfolio level affidavit of sale by original owner. This is the document that stated bank B "sold (or caused to be sold) a pool of charged-off accounts to Midland funding." So I guess I can't tell if this certificate of conformity applied to the sale of the debt to Midland, or to the entire complaint.

  7. Thanks so much for your answers. What if I wanted to muddy the waters by throwing in identity fraud. I do have a police report and I have copies of the fake check, and bank account notices from two different banks where they successfully opened up accounts and tried to get some money in there.  Although this happened just last month.

    Couldn't I ask for records from Midland and when they deny them, couldn't that be possibly a grounds for appeal (I'm thinking ahead)?  Or is that burden of proof entirely on me. I mean what I have to request copies of all my statements from bank B and bank A?

  8. Another question, if you please:

    With what you know so far, do you think I stand a decent chance of at least being able to negotiate this down to, for example, $3500.  I've spoken with a couple of attorneys who both would take the case. One wants $3500 with no guarantees. The other wants $650 +25% of whatever money he gets taken off the account.  Just by speaking with the supervisor in their claims department (I wasn't allowed to talk to the attorney), I was able to get it down to $6500. Just trying to figure out the best way to mitigate this alleged debt.  And of course I know you're not an attorney and any opinions you put forth are strictly for educational purposes only and should never be construed as legal advice. :-)

  9. Okay, Great!  Thanks again for your extraordinary generosity!

    I do have one question for you, if you don't mind.  You said this in your very first post on this thread:

    <<<Read this thread by Coltfan. It really helps us understand standing since it's the key to a JDB case, or any court case. This is how you take apart the JDB's case by making them prove they have standing to sue. Guess what, they usually can't.>>>

    Unfortunately, when I click on that link it just takes me to the page that lists all the different forms. I've looked for the thread but I'm not sure which one you're talking about. Is there a way you could point me to that thread, for I'm definitely following in your footsteps on this case and would like to read it.

    Thank you so very much!

  10. Thanks again so much! Here's another question for you: just recently I have learned someone has stolen my identity and been opening up bank accounts under my name and then putting phony checks into the bank accounts and trying to collect money. In the worst case, they actually started a wire transfer from my current bank and try to wire money into the phony bank account. Luckily my alarms went off and I discovered the evildoing and put a stop to it. I had to file a police report and put an alert on my name at the credit bureaus.

    QUESTION: is there any way I can use this to really get an itemized statement just to make sure that I really did make all of these credit card charges. I don't know how long it's been going on, so it seems like they would have to produce an itemized statement for me???

    QUESTION: I understand that according to CCP section 367 that the debt buyer must be the "real parties of interest," otherwise they don't have standing to sue. Can anybody tell me any case law or even any sections of the code that deal with the real parties of interest. I am aware of Cloud v. Northrop Grumman Corp., which ruled that a party that lacks standing to sue must dismiss or amend, but is there anything else?

    I guess I'm still trying to figure out what my defense is going to be and it seems that section 1788.52(b) or the CIVs sure isn't helping me... "For a revolving credit account, the most recent monthly statement recording the purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement." They do have a copy of my last payment.

     

  11. Wow! Thank you for the quick response. Let me answer some of your questions.

    There was no second cause of action listed.

    With regard to the answer, does it seem reasonable just to file that stock PLD-C-010 form and deny everything, which should give me a little more time to work on my alternative defenses. I'm pretty sure the complaint is not verified (there was no statement at the end under penalty of perjury claiming verification).

    And with regard to the BOP, could I just use the one that is available at https://www.scribd.com/docs ?  I'm sure with a little work I can figure out what to request, but is there something in particularly that I should be asking for? Like a bill of sale that has my name and account number on it – something more specific than they already have?

    Here's another question I have. They screwed up the first contact letter pretty bad, as they seemed to have failed to comply with sections 1788.52(a)(3) and 1788.52(d)(1).  My question is so what? I mean, with those screw ups be enough to have the case thrown out? I would think probably not, but they would just be some ammunition that I had. And then what alternative defense would that go under?

    So much to learn! But again, I greatly appreciate the help you've given me.

     

     

     

  12. <<<California Civil Procedure 1788.52 (b) A debt buyer shall not make any written statement to a debtor in an attempt to collect a consumer debt unless the debt buyer has access to a copy of a contract or other document evidencing the debtor s agreement to the debt. If the claim is based on debt for which no signed contract or agreement exists, the debt buyer shall have access to a copy of a document provided to the debtor while the account was active, demonstrating that the debt was incurred by the debtor. For a revolving credit account, the most recent monthly statement recording a purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement.>>>

    They do have a copy of my last payment attached to the lawsuit, which is quite concerning for me. It seems like they have complied with CCP 1788.52.