Being sued by Midland LLC also....new to this..

[lazy8]

1. Who is suing you? Midland Funding LLC (Legal Recovery Law Offices Inc)

2. For how much? 4,000

3. Who is the original creditor? Target

4. How do you know you are being sued? Served with summons at home. Need to file response by April, 7th. No court date yet.

5. How were you served? Were you served? Served at home by process server.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? I had no correspondence with Midland prior to this summons.

7. Where do you live? California

8. When is the last time you paid on this account? Sometime in early 2008

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). Waiting on my answer by April 7th.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No

12. Does your summons require a response in writing? Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Yes and No...I think no?

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Nothing else was sent

14. What is the SOL on the debt? To find out: 4 years in CA I am a few months shy of the SOL but by their claims I am still over a year.

I am a bit scared and feeling a little overwhelmed as I have lots of other stressful things going on atm..forclosure, jobloss etc..but feel confident I can fight this and win with the help of this great forum

Just reading reading reading right now trying to soak up all I can. I can post the entire summons in word form if that is ok and anyone wants to see it...right now I need to get my answer done this week and can use help on that.

Thanks again for all the great people here helping everyone out!

[rockyfrank]

Midland sure does get around! I'm in the same situation as you, make sure you answer the complaint on time with the court (for Cali, it's 30 days), and ADD your Affirmative Defenses!!! ADs are important to have if the case goes to trial. Don't make the mistake that I did and not add them, I am in the middle of amending my answer for that, it's a lot of work lol. Get familiar with the California Code of Civil Procedure and court rules, so you'll know what to expect. Most importantly, don't give up and don't let these guys win! They have to show proof that you owe them money. Good luck!

[skippy1960]

As you are soaking and learning you will see that you need to file and serve and answer to the complaint which will include general denials and affirmative defenses. In California many jurisdictions allow for the use of forms to accomplish this, unless you are already up to speed on writing your own pleadings.

This site has forms that most jurisdicitons will use, but check your counties web-site as they may have their own in some larger counties.

http://www.courts.ca.gov/forms.htm

You should look under Pleading and Proof of Service

You will likely use PLD-010 "Answer to Contract"

You will also need POS-030 "Proof of Service First Class Mail"

It appears you need to file answer by April 7, don't wait till last minute. Everything you will do will take more time than you think, so leave plenty of time to accomplish task. You will be required to pay a filing fee, unless you qualify for waiver. This maybe as much as $200 to file your answer.

Finally, you will need 3 copies of everything you are going to file with your courts clerk. Copy for the court, the plaintiff and one for you records.

Keep asking questions and good luck.

[rockyfrank]

Oh, I forgot to mention about the filing fee, I believe it is $225. You can file a fee waiver if you can't afford to make that payment.

You can fill out the FW-001 form (it's on the courtinfo website, click the link skippy provided) and turn it in when you file your answer. You won't have to pay that day. (The form asks for information about income and such, so be prepared to fill it out because it can be time consuming. Don't do it last minute.)

Get your bills/payments in order and start saving money just in case. The court will send you a notice in the mail about a hearing for the fee waiver. When you show up, bring all your bills/payments paperwork to hand to the judge and he/she will look it over and grant the waiver if they believe you qualify. If you don't qualify but you're tight on money, they may give you a payment option where you can pay a certain amount every 1st of the month until it's payed off.

[lazy8]

Sorry for the delayed response, been meaning to update my thread.

Thank you for the responses so far and the helpful advice, I don't know what I would do if it wasn't for all the wealth of info on here and the great people helping each other out. Can't even imagine trying to take this on 20 years ago when there was no internet..lol

rockyfrank,

thanks for the info about the fee waiver, that is the route I went as I can't afford the $300 it would've been.

skippy1960.

I did use the PLD-010 form and found a great site to help understand the items in it.

http://www.courts.ca.gov/xbcr/partners/civ-contractaction.pdf

So my deadline to file was the 7th of April and I filed my answer on the 5th. Just spending as much time as I could researching and trying to get this right. I was really nervous about actually filing and almost broke down a couple times to hire a lawyer, but I just can't afford that right now so stuck it out and finally completed the forms and filed....now the waiting to see if all goes how it should.

I filed a PLD-010 with General Denial checked as my complaint was "Unverified" and less than 10,000. For my Affirmative Defenses I listed these on an attachment document in legal form:

Failure to State a Cause of Action

As and for a First Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted

Running of the Statute of Limitations

As and for a Second Defense

Defendant is informed and believes, and thereon alleges, that

Plaintiff's action is barred by the provisions of CCP Section 337,

Section 338, Section 339 and Section 343

Failure to Mitigate Damages

As and for a Third Defense

Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages

Statute of Frauds

As and for a Fourth Defense

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person

Failure of Consideration

As and for a Fifth Defense

Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant

Lack of Privity

As and for a Sixth Defense

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff

Parole Evidence Rule

As and for a Seventh Defense

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule

Unclean Hands

As and for a Eighth Defense

Defendant is informed and believes, and thereon alleges, that

Plaintiff is barred from recovery by reason of his unclean hands

Attorney’s Fees Not Recoverable

As and for a Ninth Defense

Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them

Laches

As and for a Tenth Defense

Defendant is informed and believes, and thereon alleges, that

Plaintiff is barred from recovery by the doctrine of Laches

Unjust Enrichment

As and for a Eleventh Defense

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive

Fair Debt Collection Practices Act

As and for a Twelfth Defense

Plaintiff is barred under the Fair Debt Collection Practices Act, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by purported agreement.

As and for a Thirteenth Defense

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

I also filled out and got a FEE waiver otherwise I don't think I could've afforded to answer the complaint.

[voidjudgment]

Looks pretty good, but the main bone of contention in a junk debt buyer lawsuit is proof of ownership, which Midland can never produce because they always buy a huge bundle of accounts and they just can't produce a legitimate bill of sale, oh they can manufacture a phony bill of sale or a bogus "affidavit of debt" but they can be easily defeated in a court of law.

[rockyfrank]

Hey lazy8,

I have a question, the attorney who is representing Midland, is his(assuming it's a he) initial for first name start with an 'M' by any chance?

[calawyer]

Next you need to send out some written discovery (a bill of particulars if appropriate). Search here for Bill of Particulars or BOP and you will find what you need.

[lazy8]

Been a few days since I last checked in, sorry for not getting back to you quicker but yes Rocky the lawyer for midland is Mark..last name W...

Calawyer,

you're help on here is much appreciated and you have given a lot of great advice to a lot of people in need.

I am researching the BOP and discovery now and will be sending that out in the next week...still no update on the case. Court records only show my answer filed but I have been checking daily just to make sure there isn't some Default Judgment erroneously entered against me as I've read has happened to others on there.

[calawyer]

Calawyer,

you're help on here is much appreciated and you have given a lot of great advice to a lot of people in need.

I am researching the BOP and discovery now and will be sending that out in the next week...still no update on the case. Court records only show my answer filed but I have been checking daily just to make sure there isn't some Default Judgment erroneously entered against me as I've read has happened to others on there.

It is not a bad idea to check the docket periodically. Sometimes things get "lost" in the mail.

But don't worry about your default being taken. Once an answer is on file, a request for entry of default should be rejected.

[lazy8]

Update:

I had to move due to losing my home, and between moving and looking for a place to live and work I've just dropped the ball on this.

I had my address forwarded to a po box recently and just received a notice from midland that there is a court date set for Oct and that they are asking for a judgement in their favor since I never responded to their Discovery request a couple months ago.

What to do? What can I do?

Do I just wait until the court date and show up? or do I still file a response to their discovery? and send a request for discovery also?

Any help would be appreciated.

Thanks

[calawyer]

You need to do a few things.

First, find out when the hearing is and calculate the date of your opposition brief. See CCP 1005 (: CA Codes (ccp:1003-1008)

Respond to plaintiff's discovery before that time,. Tell the Judge you have done so in your opposition brief.

If you never sent your BOP, do so now.

[1stStep]

Send a bill of particulars FAST!!!

Then file a motion in oppostion for summary judgment - your reason is the outstanding response to your bill of particulars.

This should stop summary judgment and turn the tide in your favor.

[lazy8]

ok, thanks for the quick response...just trying to play catch up on what to do and get my head around all this. If I read it right then I have to mail the opposition served 16 calendar days before hearing plus another 5 days if mailing. The hearing is on the 7th of OCT and it states that the tentative ruling will be made the day before.

Can I ask for a continuance? does that fly? or am I already looking really bad for not responding to the discovery request?

back to reading..goal is to get everything out by cob tomorrow...

Thanks again for all the help

[lazy8]

Also to note they are asking the judge for sanctions to be imposed in the amount of $350 for time filing motion....

[1stStep]

Get the BoP out first...then concentrate on everything else...sending the BoP will put you in the drivers seat pretty fast. They must answer in 10 days (not likely), and after that, you can probably move to preclude any "evidence" of the debt.

No evidence = no case = you can move for a dismissal.

[calawyer]

ok, thanks for the quick response...just trying to play catch up on what to do and get my head around all this. If I read it right then I have to mail the opposition served 16 calendar days before hearing plus another 5 days if mailing. The hearing is on the 7th of OCT and it states that the tentative ruling will be made the day before.

Can I ask for a continuance? does that fly? or am I already looking really bad for not responding to the discovery request?

back to reading..goal is to get everything out by cob tomorrow...

Thanks again for all the help

No. Your opposition is due 9 Court days before the hearing:

All papers opposing a motion

so noticed shall be filed with the court and a copy served on each

party at least nine court days, and all reply papers at least five

court days before the hearing.

You could call the other side and ask them to stipulate to continue the hearing but they may not respond at all. So, you should get to work.

[lazy8]

Demand for Bill of Particulars

1 TO PLANTIFF, MIDLAND FUNDING LLC AND THEIR ATTORNEYS OF RECORD HEREIN:

DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant (My Name), within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for account stated and money lent or paid of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account.

Ok I sent this out printed on Pleading paper via first class mail expedited to get it there a little quicker....am I right in my info that I don't need to file this with the clerk? or should I?

Next I am getting out their demand for discovery answers..

[lazy8]

I sent this out with a POS via form POS030...is this ok vs POS040?? Is the only difference the different ways to serve?

[1stStep]

You don't need to file with the clerk.

You can use either form...probably want to go with 030 if you are serving via first class mail.

[lazy8]

ok, Thanks 1ststep

Just having a look today at my case online and see that their stuff popped up...this is what was filed by them

-CL-CL-GDS Motion to Compel Discovery 47 KB

-CL-CL-GDS Memorandum of Points and Authorities 88 KB

-CL-CL-GDS Declaration - Other 255 KB

-CL-CL-GDS Association of Attorney 20 KB

-CL-CL-GDS Proof of Service - MAILING

Still reading thru and trying to make sense of this all...wish I could afford an attorney as I feel overwhelmed a bit and behind the curve now missing their discovery request within 30 days...

[Seadragon]

I filed opposition to it and answered the discovery.

I would say you sent letters to the court and plaintif telling them of the change of address. I thought it was ok and now am opposing it. here is the answers and it did not predjudice the plaintiff. sanctions would not be appropriate as the letters were sent.

You see most courts will not let sanctions for that.

So file the opposition answer the discover and attach the discovery as exhibits to the opposition and make sure you attach as an exhibit the "letter' notifying the court and plaintiff of the change in address.

also bring up the fact that plaintiff's failed to meet and confer about this.

Edited September 13, 2011 by Seadragon
adding

[lazy8]

I didn't have time to work on this the last couple days but am taking today and tomorrow off just to focus on this, just hoping I am not too far behind the 8-ball at this point.

I just noticed in my haste to get the BOP out that in the last set of docs they sent me they changed lawyers and the one I sent to is no longer handling my case or the point of contact.

So here's my plan of attack for today:

1) Resend the BOP to the correct lawyer along with POS

2) Answer Discovery and Rogs

3) Work on Opposition

Some questions I have...

1) I never sent out a change of address letter to court or lawyer, is there a form for that? I didn't find one in my search...do I need to file those with clerk? I did call Midland and inform them of my move back in July

2) Can I ask for a continuance? Hearing is set for Oct 7 and from what I read the tentative ruling will be done by the judge the day before. Again I didn't find a form for that, so guessing I have to write it on Pleading format? Would I use the outstanding discovery and BOP as a reason for a continuance?

3)Midland is trying to get sanctions imposed against me, how do I defend against that? not sure what wording to say. Seadragon - not sure exactly what you mean by your reply as I haven't sent any response out yet...or change of address...I don't really have an excuse other than I moved and mail got lost and mi-sorted...researching the meet and confer stuff now.

I apologize if I am repeating myself and not getting it...just trying to take it all in

thank you again for all the help

[lazy8]

Just looking thru the Sacramento cases for Midland and looking at the docs there...good way to get sample responses

I came across one that the defendant hired a lawyer and they files an answer to the summons, basically throwing every affirmative defensive out there..lol...and then a couple weeks later they file for a dismissal without prejudice and got it accepted???

1) why file for "without prejudice"? why not "with"

2) Can I just up and file for a dismissal as well at this stage? do they have to respond within a time frame?

Here's the docs if anyone is interested

https://services.saccourt.com/publicdms/Search.aspx

Case is 00102347

[lazy8]

Nevermind...I didn't see that it was the plantiff that asked for dismissal

Edited September 15, 2011 by lazy8