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help with midland funding


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Hello everyone, just want to start off by saying thanks to everyone who has posted. I have been reading everything about how to fight back and have followed all the advice. but now I am stuck on what to do next. I received a letter from midland funding that states the following"NOTICE OF MOTION AND MOTION FOR ORDER THAT MATTERS IN REQUEST FOR ADMISSIONS BE DEEMED ADMITTED AND IMPOSING MONETARY SANCTIONS : SUPPORTING DECLARATION OF RORY CLARK " also attached was request for admissions truth of facts. in a seperate letter i received an affidavit signed by a citicorp employee stating he has knowlwedge of my alleged acount with them. now i read in a post here that these affidavits are not enough to show evidence of debt. I was getting ready to mail out a request for productions of documents and was using the template provided here, however do i need to send this again since i have already sent one before that was worded differently? should it say second request for production of documents? please help im kinda lost as to what to do next . thanks again in advance

Edited by SLIP240
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My good buddy Rory...

OK let's pull apart what's happening... the motion to deem admitted is filed if you fail to answer their request for admissions. Did you answer them? If not, you'd better get going and fast!

The affidavit is from a Citibank employee...which unlike the JDB affidavit is not hearsay. It will be tough to get it precluded...

What you need to do is send a request for a BILL OF PARTICULARS. This forces Midland to itemize each and every transaction over the life of the account - and they only get 10 days to respond. Since it is Midland, they may not have the information to comply - which means you can then move to sanction them, or even to preclude the affidavit the Citibank employee submitted.

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the only thing I have ever done since I got served is filed a response back in January. I'm not sure if this is the same as the request for admissions. if not then I will get that going asap. They trying filing for deafult but that got denied because i responded on time. This new letter is the only one I have received since then. On my response I did request proof that this was my debt. So their response was , I assume , is this affidavit from the employee. Now this motion hearinfg is set for 08/15/2011 and one more thing about this letter is that it came with a notice of non appearance stating Midland Funding will not be appearing at the hearing. I will get started on the bill of particulars today and get it mailed out today by certified mail as i have done before. If theres a link you can guide me to that can help me write the bill of particulars and if neccesary the request for admissions that would be a great help. Again THANK YOU SO MUCH for your help , this has been a nerve wrecking experience for my wife and I.

edit: i did find a template for that BOP , thank you

Edited by SLIP240
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2 things:

1. Send them the BOP.

2. File a Motion in Opposition...state that you received a request for admissions and their motion should be denied. Be sure to include a declaration that you never received any request for admissions. File the motion with the court and send the stamped copy to Rory. He'll love that

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ok awesome. I have the BOP ready(typed it up a few minutes ago) and now I will get started on the 2nd part of this. I assume that I can get this form from the somewhere here if not the courts website correct? thanks again

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here's what i have for the declaration stating i never received the letter please let me know if I should add anything else.

"I, xxxxxxx, HAVE NEVER RECEIVED A REQUEST FOR ADMISSIONS FROM MIDLAND FUNDING LLC OR THE LAW OFFICE OF RORY CLARK. NO SUCH LETTER WAS EVER RECEIVED AT MY ADDRESS."

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Looks OK...make 3 copies and go file the motion in opposition w/ the court and get it on calendar for a hearing....also send the BOP directly to Rory's office.

Be sure to include a Certificate of Service on the BOP. They must respond within 10 days of receiving it (add 5 days for mail).

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Hello everyone, just want to start off by saying thanks to everyone who has posted. I have been reading everything about how to fight back and have followed all the advice. but now I am stuck on what to do next. I received a letter from midland funding that states the following"NOTICE OF MOTION AND MOTION FOR ORDER THAT MATTERS IN REQUEST FOR ADMISSIONS BE DEEMED ADMITTED AND IMPOSING MONETARY SANCTIONS : SUPPORTING DECLARATION OF RORY CLARK " also attached was request for admissions truth of facts. in a seperate letter i received an affidavit signed by a citicorp employee stating he has knowlwedge of my alleged acount with them. now i read in a post here that these affidavits are not enough to show evidence of debt. I was getting ready to mail out a request for productions of documents and was using the template provided here, however do i need to send this again since i have already sent one before that was worded differently? should it say second request for production of documents? please help im kinda lost as to what to do next . thanks again in advance

Before filing the motion, Mr. Clark is required to meet and confer with you. This means he should have sent you a letter. Look carefully at the motion. There should be a declaration included. That declaration should say that plaintiff wrote you a letter on ____ meeting and conferring. The letter should be attached as an exhibit. Is there such a letter? Does it contain your correct address?

If this happened to me, I would write Rory a letter saying that I did not receive the requests for admission until I got his motion. I would demand that he withdraw the motion and offer to respond in 30 days to the RFAs. Not sure if you have time to do so, however. Your opposition is due 9 court days before the hearing (CCP 1005 (B): CA Codes (ccp:1003-1008)

If you have to file, your declaration should be on pleading paper and look like this:

DECLARATION OF XXXXXXXXX IN OPPOSITION TO MOTION TO [HAVE RFAs DEEMED ADMITTED]

I, XXXXXXX declare as follows:

I am the defendant in the above-entitled proceeding. I have personal knowledge of all the facts contained herein, and if called to testify, could and would testify competently thereto.

1.I have never received requests for admission from Midland Funding LLC or the Law Office of Rory Clark. No such discovery was ever received at my address.

I declare under penalty of perjury that the foregoing is true and correct.

Executed this ___ day of July, 2011 at _______, California.

You should also do a short opposition brief saying that you never received RFAs in this action but are willing to provide response to any discovery that is properly served on you.

Good luck.

Edited by calawyer
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ok , so im posting what I am sending to Midland in case anyone here needs a template on how to respond. thanks again for your help

DECLARATION OF XXXXXXXXX

I, xxxxxxxxxxx, HAVE NEVER RECEIVED A REQUEST FOR ADMISSIONS FROM MIDLAND FUNDING LLC OR THE LAW OFFICE OF RORY CLARK. AS OF JULY 19TH 2011 NO SUCH LETTER WAS EVER RECEIVED AT MY ADDRESS. I, xxxxxxxxxxxx, AM WILLING TO PROVIDE RESPONSE TO ANY DISCOVERY THAT IS PROPERLY SERVED ON ME.

I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF CALIFORNIA THAT THE FORGOING IS TRUE AND CORRECT.

EXECUTED ON JULY 19TH 2011 AT xxxxxxxxx CALIFORNIA

Edited by SLIP240
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Add the following sentence:

I am the defendant in the above-entitled proceeding. I have personal knowledge of all the facts contained herein, and if called to testify, could and would testify competently thereto.

You should also do a short opposition to the motion. Say that you never received the requests and cite your declaration. Point out anyuthing else you can from the motion itself (i.e. is there a proof of service? If not, say so. Does it show your correct addrress? If not, say that is why you never received them).

Good luck.

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  • 3 weeks later...

The BoP needs to be answered within 10 days of receipt- add maybe 5 to 7 more for mail.

When did they get it?

////

Your next steps (Calawyer can give you specifics)

1. If you don't get a response - send a letter informing them of their requirement under CCP 454 (BoP code) and you are going to generously give them say 15 or 30 days to provide a response.

2. If they cannot respond (or the response is not adequate), then you'll have to file a motion in limine to prevent them from offering any further evidence regarding the alleged debt.

Since it is Midland, I think they will have trouble complying with the 10 days and/or not have the information to itemize each and every transaction over the life of the account.

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