DonnaPoo

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  1. Posted Today, 04:14 AM @DonnaPoo The highest of 5s on your awesome victory! Has it been filed? Do you & they return to court in 6 weeks, or so? What is the statute of limitations; can they re-file before it runs? Can you still turn in the paper asking for "with prejudice"? Please, may we know why you decided to accept without prejudice? Happiest of times to you! Happiness & Satisfaction well-earned! Warmly, Thank you, Thank you. Will try to answer your questions one at a time... ~~As of Friday the Dismissal had not been filed with the courts yet and will probably showed filed in the courts next week or so. ~~As far as I know there is no returning to court in 6 weeks or any future hearing date once the action is dismissed the courts usually doesn't schedule a future hearing at least not in Riverside County unless it's for some other matter unrelated to the original complaint. ~~I believe statue of limitations run out in 2016 and sure they can re-file until then but I doubt they will. If they do I will just update the legals I never had a chance to use and we start all over. ~~I don't believe I can turn in my legals and request a new Dismissal w/Prejudice. It all happened so quickly while I thought about requesting the court to enter w/Prejudice before I could say anything as soon the judge thanked me for coming in he asked the clerk for the next case and they off to another case. Honestly just really glad to get out of there.
  2. MIDLAND FUNDING DISMISSAL!!!!!!!!!! Thanks to ASTMedic ‘s post and help from calawyer, RyanEX, bravoflaca2000, and the invaluable information provided by HOMELESSINCA I was able to successfully defend myself Thursday and obtained a Dismissal from MIDLAND FUNDING LLC!!! I followed the very informative steps ASTMedic posted which everyone should follow as a basic framework to work from for a defense. While every case is unique there seemed to be an underlying theme to everyone of them: If you follow basic court procedures, stick with the timeframes for each action, research the merits or issues, and scrutinize every piece of evidence MIDLAND or any other Junk Debt Buyer for that matter presents, you absolutely cannot fail. Here is my story… I was served with a Complaint for “Account Stated” by MIDLAND FUNDING and following ASTMedic’s example filed a General Denial and following others filed a Bill of Particulars and served both on MIDLAND. A hearing was scheduled by the courts which was an OSC for Dismissal for Not Bringing Default a standard procedure the Courts follow when there is a Complaint filed. The Hearing was eventually moved to another court location in another city and I believe this may be due to the court Backlog in Riverside County. Because of the line of work I'm in I know the courts are backlogged so this was understandable. Anyway, with that being said when I received the notice the hearing was moved to the new location it also stated it was for "Trial" so I began to prepare for that process. During Discovery I sent a “Meet and Confer” letter requesting additional information as ASTMedic posts suggests and MIDLAND’s Attorney responded with a letter basically declining my request and their letter stated “your objections to our discovery responses are not in good faith and meant merely as tactical gamesmanship to obtain an advantage unrelated to the merits of the complaint.” To clarify all I asked for in my “Meet and Confer” was something more substantial than just a generic agreement that specifically identified me, and/or my account as an account that they in fact purchased and owned. As ASTMedic suggests I wrote “If Plaintiff does not have a valid assignment of the account at issue in the complaint, it does not have standing to pursue its claims.” Next as ASTMedic suggested I sent MIDLAND the CCP 96 request and received the CCP98 Declaration in Lieu from MIDLAND the following week (but not as an Official Response to my CCP 96 request) so I began by picking apart MIDLAND's evidence as HOMELESSINCA suggested. For me it was not so hard, because of the type of work I do I have to pay attention to the details which is not good for MIDLAND and I made notes about each discrepancy I found. One of the things that stood out in the Dec in Lieu was that MIDLAND included a “New” Affidavit this time listing my name and my account, funny how when I asked for this in the “Meet and Confer” they would not provide it to me, right? I went through all my Discovery responses from MIDLAND (3 different times just to be sure) and I had never received this Affidavit. I began to really scrutinize and pick it apart the Affidavit and this is what I found: 1. The Affidavit was executed by a Jane Doe (name changed for privacy purposes) but there was no date of execution basically signed but not dated odd right? 2. The Affidavit specifically mentions a merger of one corporate subsidiary into another on MARCH 13, 2013. There is only one reason to mention such a merger in the affidavit which is to indicate that the Affidavit is being produced and executed on or after such merger. This begs the question, why would an “Original Creditor” provide such an affidavit a full 6 months or more after MIDLAND FUNDING claims to have purchased the account from the "Original Creditor" and now owns it? 3. The next problem with the Affidavit and the most telling was the Notaries date of execution, one could not tell if it was 2010, 2011, or 2014 it was very indistinct. As a former Notary myself I know these things are never indistinct…so I research the Notaries Commission and the 1st or Original Commission was not valid until 07/2012 so anything that may have the Notary Stamp or signature is not valid prior to that time. The Notary could not have notarized anything prior to their original Commission in 07/2012, and the purpose of the Notary is to witness the signature of the person signing the document and the date of execution for the Notary must be the same date they witnessed the signing of the document, here neither of which was clear. However the Affidavit itself could not have been executed until sometime on or after MARCH 13. 2013 as it specifically mentions the date of the merger which is a full 6 months or more after MIDLAND allegedly purchased the account in 09/2012. (It should be noted that my specific information appeared to be inserted into the document like it was pulled from another source and not hard coded.) I work in the legal field and with attorneys although it is in a different field, I wanted a little insight into the tactics attorneys use from another attorney so I asked one about “unfair gamesmanship” and a strategy on the new Affidavit, I wanted know if I would file a specific motion to exclude the new Affidavit that was never provided during Discovery even after I requested more from MIDLAND in the “Meet and Confer” or would I just include it in the Trial Brief and NOM in Limine? As he explained every attorney accuses the other of “unfair gamesmanship” and it’s a tactic regularly used when one may have the upper hand however the one using the term will not think twice about using “unfair gamesmanship” if it will give them an edge in their case! I was told that it could be put both in the Trial Brief and the NOM in Limine an argument that not providing the Affidavit during Discovery unfairly prejudices me from providing a defense to the Affidavit. A specific motion could be filed but if it was addressed in the Trial Brief and NOM in Limine it would really not be needed. So I just decided to attack the Affidavit in both the Trial Brief and the NOM in Limine then. For my Trial Brief I followed examples from ASTMedic and HOMELESSINCA...taking a little from both. Next as ASTMedic suggests I Subpoenaed the Declarant of the Dec in Lieu from MIDLAND, there were about 7 addresses provided and the funny thing only 3 addresses was within the prerequisite 150 miles of the court, 2 in San Diego and 1 in Commerce CA. I went on the NAPPS website which is a registry of Process Servers and requested quotes. I chose the one closes to MIDLAND in San Diego which also had an office on the same street as MIDLAND's Camino Del Rio location. I told the process server I wanted service attempted at both the San Diego locations and sent him the subpoena. Now here is the interesting thing, as it turned out the process server does service for a Legal Office that is actually a Consumer Protection type of Law Firm and he asked me where did I get the name of the Declarant from because he serves MIDLAND FUNDING all the time for his client and had never heard of this Declarant…so I told him it was from the Dec. in Lieu and I sent him a copy. I told him I figured he would be familiar with MIDLAND FUNDING being in his line of work and that they were right down the street from him. I gave the process server specific instructions that the Declarant must be served personally the only exception is if an individual identified themselves as Council for the Declarant he could then serve that person but would need Council’s full name etc…. the process server had mentioned that whenever he serves the subpoenas for his client he always just left it with the Paralegals at the location could he just do that? I responded no, his client is a big Law Firm and one Law Firm against another can afford to excuse some procedures whereas I as an individual who does not have unlimited resources cannot, with that he understood. In the following 2 weeks I went about prepping the Trial Brief and NOM in Limine, both were done with the presumption that the Declarant could not be served and imagine my surprise when the process server told me he was able to successfully serve the Declarant at the first address he tried which was at 8875 Aero Drive, STE 200, San Diego, CA. He told me the funny thing about it was that before me he had not been able to serve anyone at that location for the last 3 years and was surprised himself when the Declarant was there and he served him, yeah lucky me huh? Anyway for the next 3 days or so I had to totally edit my Trial Brief and NOM in Limine and go with a new strategy removing all references to being unable to serve the Declarant and get ready to possibly have to Cross Examine the Declarant at court. A week before Trial I got my docs ready and Fed Ex’d a copy to MIDLAND FUNDING and I went to file with the courts but due to rules of the courts could not file them was told they had to be provided to the Judge the day of the hearing because they were trial docs. I found this to be a little disconcerting because did not think the Judge would have time to review the issues during the hearing this was a 40 page Trial Brief, a 20 page Declaration, 14 page NOM in Limine, and a another 20 page Declaration in support of NOM in Limine….but I figured will just see what happens on the day of I guess. Following ASTMedics suggestion the night before court I slept and got up Thursday morning and prepared for war. I chose my favorite power suit and got in the zone. Got to court and checked in and waited and waited. Finally court is in session and all parties in “Collections Cases” were told to go to mediation to see if issues could be settled prior to hearing, and my case was told to meet with the Mediator. Here is where it gets interesting, the mediator calls me and I answer but no Council for MIDLAND responds after a beat I ask how long does the judge usually give Council not present before he decides to dismiss? The mediator answered that Council for MIDLAND was there but had several cases he was handling and was meeting with other Defendants and would be meeting with us as soon as they were finished. Fair enough so we proceeded to the Mediation room where he explained the purpose of Mediation and the effects of a possible judgment against me I politely listened and did not interrupt even though I know all about judgments and their effects. The mediator asked me what type of case it was while trying to look it up and I told him “Account Stated” and he responded it sounds like you understand the case. Then he was looking for the Collections Case Management Form which is a form the courts require you bring with you for this type of hearing, I had my copy already filled out and signed and gave it to him. He noted that the amount the Plaintiff was blank and I explained the reason why it was blank was because their Complaint listed one amount but their Declaration in Lieu lists another and due to the confusion just left it blank and figured it would have been written in at some point, he said makes sense. So here is the funny part and looking back on it now I’m pretty sure it may have come off as being a smart a$$ but really I was very serious. The mediator tells me that we have to show the Judge that we have made a good faith effort to negotiate and what type of offer did I want to make? A couple hundred? A thousand? What did I reasonably want to pay? Now the clock in the room was very wrong it was showing 3:15 but I knew it was only about 9am so I looked at him and I asked him what time it was? He said it was 9:03am, so I thought to myself I have 2 dollars left before I have to put it in the parking meter outside. I said to the mediator "well I have 2 dollars and Council has about 50 minutes to decide if he wants to take it before I put it in the parking meter outside so that’s my offer." The mediator looked at me kinda surprised and then he smirked and said “well guess you got to start somewhere right?” I then asked "by the way, I subpoenaed their Declarant would you know if they are here also?" The mediator responded that he didn't and with that he left saying he would take my offer to Council. The mediator was back after about 5 – 10 minutes or so, saying yeah Council is not accepting the offer so I just basically shrugged. He sat down and asked “aren’t you concerned that a judgment will be entered against you?” I said not really because the evidence is very poor. The mediator then asked “how are you so sure?” I told him because I have done my research and confident I have a defense. The mediator asked “what if you’re wrong and you lose?” I said well that is an eventually I am prepared for and if I do so be it, but it will not be without a fight. With that said I told the mediator I want you to look at something to see why I feel the way I do and I pulled out the infamous “Asset Sale Agreement-Attachment 2 Bill of Sale” and gave it to him and told him to read it. After a minute, I asked him “do you see my name or an account number anywhere within the document?” He said no, and then he went back to where it mentions the infamous “Appendix1” and asked “what if Council has this Appendix1 with him today?” I said “I sincerely hope he does, and once examined it has my name and account listed, but I doubt very seriously Council has this mysterious Appendix1.” The mediator asked “well do you think their lying?” I said no I don’t think that, but what they are doing is taking a bunch of unrelated junk that really does not prove anything, manipulating information and presenting it to the courts as evidence when it isn’t. I went on to explain what they rely on is the backlog of the courts who does not have the time to scrutinize every document they present and a defendant who is not sophisticated enough to know how to defend themselves against it. I am not an attorney and have not attended law school but unfortunately for MIDLAND my job which is in the legal field requires me to pay attention to the details and I cannot allow them to do this without a defense. Finally the mediator looked at me and said “well what do you hope to do today?” I looked at him and I said go before the Judge and present a defense. He said “are you sure this is what you want?” I told him “do you see this Binder (it was my trial Binder which was about 4 inches thick), do you see this Trial Brief and this motion” (I was waiving them at him) I have done my research, I have prepared for this day, and I am fully ready to litigate this matter. The mediator then said “before I go do you have one more offer for me to take to Plaintiff?” I looked at him and said “I have a 5 dollar bill and Council still has about maybe 30 minutes before the offer goes away” I was completely serious because I was fired up and wasn’t trying to be a smart a$$ at all, and I had on my power suit, I am woman hear me roar!!. The mediator left and returned after about 5 minutes and said “ok come with me going to let the clerk know there was no settlement and matter will go before the judge”. The funny part I never met with MIDLANDS Council during the mediation process, so did not know who he/she was or what they looked like. I sat and waited for my case to come up. While waiting for my case to be called there was an attorney that handled 3 cases back to back prior to mine being called and I watched and listened to the court enter large judgments against Defendants just by the Dec in Lieu that was presented. I felt really bad for them because they were all clueless as to what was going on and so had no defense. One defendant requested the courts to continue the matter because he “was going to” file for bankruptcy but Council stated to the court there was no need to continue the case they were ready to go forward with the case today and the court agreed because the Defendant had not filed and could not continue based on the Defendant possibly filling bankruptcy which was understandable. This same attorney representing 2 different Plaintiff’s obtained 2 judgments against this same Defendant back to back for a grand total of $18k!!! Then my case was called and the same attorney stayed there and before I could walk up to the Defendants table, identify myself, and set my Binder down on the table, the attorney said “this one your honor we are just going to move for Dismissal without Prejudice today”. The judge looked at me and then he looked at the attorney and said “really” and the attorney said “yes, your honor we would like to Dismiss”. The judge looked at me and simply said “thank you for coming in today”, clearly I could see the curiosity on his face as to why the attorney requested a Dismissal on my case when he just went so hard on all the cases before mine? With that I excused myself from the court room. On the way out in the hall I saw one of the other mediators and asked “where was the mediator I had met with?” He said he was with someone but could get him if I needed, I said no there was no need but requested that he gave the mediator a message that the lady he met with earlier the one with the Pinstripe suit “Dismissal!!” he said “congratulations!” with complete surprise. Needless to say I was so syked and excited even though I had taken the whole day off from work I went in to work. It has taken me a couple days to regroup and process the experience and then another to write about it. I am not very much of a writer so please forgive me if I may have left something out or transitioned from one topic to the other that is not smooth. I am open to answering any questions you may have and if requested will provide copies of the Brief and NOM in Limine that I so tireless labored and fretted over and never had the chance to use. Funny now looking back on it I spent about 2 months of weekends writing, researching, and formulating arguments I felt like I was back in college again writing a Thesis or Research Paper only instead of earning a grade I was defending myself against this crappy lawsuit that could have cost me a few thousand dollars. I decided to write this story because unlike many others did not post daily in the forum or submitted continuous status updates on my case that readers could follow but I really wanted to share with others the outcome because I know it could not have happened without the valuable contribution of every one of the members on here and you deserve to know that you have helped someone every time we successfully beat MIDLAND FUNDING LLC or any other Junk Debt Buyer at their own game. For that I am truly grateful. Thanks guys!!!! DonnaPoo
  3. Posted Yesterday, 06:58 PM I think the 10/24 date wasn't an appearance/hearing, rather the date the court made the change that her CMC would include a trial. Can you clarify, Donna? That is correct it was originally set for a Hearing re OSC Why Sanctions Should not be issued against Plaintiff for Failure to file Default scheduled 12/11/14. Then courts changed it to Case Management Conference and Trial on 10/24/14 basically changed the purpose of the hearing scheduled 12/11/14 from Order to Show Cause to Case Management and Trial. Thanks will send the CCP 96 out today with POS by mail and CMRRR.
  4. Good morning all I know this may really be a dumb question but just want to be sure. For the CCP 96 form aka: DISC-015 can this form be submitted to Responding Party via CMRRR only or should it be acompanied by a POS by mail as well? Intially our case was scheduled for Case Management Conference only but the courts changed it to include a Trial as well on 10/24/14 so I need to get this out to Midland asap but want to make sure it's served properly the hearing is scheduled for 12/11/14. Thanks in advance for your help.
  5. Thanks guys for your responses really appreciate it. Now I feel more confident than ever before that I can fight them and be successful well give them hell anyway!
  6. Hello everyone let me start by giving much thanks to all the contributing members on the Forums here. I have been a reader for a very long time about 10 years now, never been a poster but was able to use info found on here to help a lot friends get through their cases, some have won some have lost. Now that I am need of some assistance I really hope that some of you are able to help me. I just have a few basic questions. I found ASTmedics thread and really found that his strategy is the most easiest to follow so would like to employ the same. I started out initially preparing my Answer, BOP, and General Denial while I could find a lot of information on the Answer and have been able to locate standard format and wording for a BOP I am unable to find any thing for the General Denial that can be filed in CA in reply to a Civil Case. After further reading found that a BOP is not applicable to an "Account Stated" action which mine is. So guess I will be tossing the BOP I had prep'd for filling. This leaves me with the "Answer" of which I'm pretty competent is adequate although after reading the threads from Coltfan, ASTmedic, CaLawyer, Seadragon and others about the flaws of the various arguements they have seen presented and the outcomes I will be going back to the drawing board and changing my existing Answer especially with respect to "Lack of Privity" etc...because it was one of my many Affirmative Defenses. With that being said I like that a simple General Denial to get the ball rollin gives the moving party little info to use against you later on down the line. Which brings me to my post/request for help. 1. Is filling the General Denial alone enough? Or is including the Answer with the filling a good strategy to employ? Or later on? 2. Is the General Denial treated the same as an Answer by the courts, whereby it prevents moving party from filling for Default? 3. Can anyone point me in the direction or provide me with some sample Templates or Redacted fillings of a General Denial that can give me some guidance. Especially if I want to lay the ground work on having the suit eventually tossed on Hearsay etc... 4. Once either the Answer or General Denial or both are filed what is the standard time frame for me to send them a RPD? 30 days later, 30 days prior to trial? After I get their ROG's etc...? I want to be ahead of the game and beat them when it comes to this. Anyway any info that can be gleaned from anyone out there will help me tremendously because I intend to file my docs on Monday.
  7. Not sure about garnishments from debt judgments or writs etc....but I can tell you that if it were child support collections and there were multiple withholdings for say multiple children or withholding orders then the total of all garnishments can not exceed 50% of gross disposable wages which are wages available after the standard deductions for taxes etc....So for instance, if you were paying for 3 different families all and a total of 3 different garnishments the combined total of them still can not exceed 50% of gross disposable wages. This of course pertains to child support, I have heard that writ collections have a max of 25% but I would verify that if I were you.....
  8. I could be wrong but I could have sworn I read somewhere on the website that there was a case that was tossed out of court cause the attorney/lawgroup did not validate the debt 1st before persuing litigation. I would suggest you request a copy of your credit report from the big 3 1st (using the methods on the website) then also following the other suggestion by checking your local courts for any filings. It would be worth the time in researching what they are talking about. Once you get your reports from the CRA's dispute it with them 1st if you don't want to disclose your whereabouts to the collector. But these are just suggestions and this is the 1st time I have ever responded to a board. Good Luck...... DonnaPoo