VLDCA

Is it too late? Going to Trial w/ MIDLAND next month Need Advice!

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Hi! I wanna start by saying MIDLAND Funding summons me a yr ago re a default w/ WAMU in California. Since I have a Lawyer friend I went & saw him & asked him what he thought & he said I would have to pay, but what we could do for now is put them off by filing all the responses & that would get me time to get money together so right before trial MIDLAND would offer me a deal. So he did all the paperwork over the last yr for me. I believe just the basics. My Case Management was vacated & a trial was set for August.

So on about June 27, I received a 'Request for Statement of Witnesses & Evidence' & I took it to him & he took for ever to get it together yet he finally did & I just mailed that out Friday along w/ a

'Request for Statement of Witnesses & Evidence' to Midland which they already sent w/ the request for me. So I was looking through the book of papers they sent w/ the Request & I see this 'Affidavit In Lieu of Testimony' & over the wkend I asked my Friend should I object to the declaration on the basis of the 'hearsay rule' since she doesn't/hasn't worked for WAMU or even CHASE & he finally emailed me back today & said he could no longer work w/ me on this case since he strongly feels I will lose anyway no matter what I throw out there & that I am better off calling them & taking a deal before trial. He went on to say if I went to trial I would lose & they then could come after my bank account, assets or even after my husbands pay check & they would come for the full amount +. So that scared me & I went online & found you guys!

So here is what MIDLAND has as Evidence, they have statements from WAMU & CHASE showing my name, address & account number. A bill of sale from WAMU to CHASE, a bill of sale from CHASE to MIDLAND, both do not show my name or address or account number. (the default happened right before WAMU sold to CHASE) They have a witness who works for MIDLAND as a Legal Special ist. Whose business is in Minnesota. Yet she listed address close to the courthouse here where the trial will take place.

MIDLAND filed the 'Affidavit in Lieu of Testimony' earlier this mth w/ the courthouse. So I'm thinking she will show up.

So here are my questions. I have 20 calendar days til trial & I want to be prepared. Do I have a fighting chance of winning on what I have showed you guys? Or do I need to settle before trial as my Lawyer friend advises me?

Also, do I need to file my response to the 'Request for Statement of Witnesses & Evidence'? He told me not too.

If there are any ideas you guys have feel free to post them.

Thanks in Advance!! :mrgreen:

Edited by VLDCA

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The sad thing is that most Lawyers have no clue about dealing with JDB and will recommend folding right away. There really needs to be more consumer law taught in Law School.

Someone from Cali can provide more info, but I think the listing of the local address on the 'Affidavit in Lieu of Testimony' is an attempt to skirt the law that allows that. HOWEVER everything in this document is hearsay. Also do they have authentication from the OC for all bill of sales?

You best bet right now is to either move to strike all these documents or a motion in limine to have them precluded.

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You're so sweet for responding so fast! I really appreciate it! :)

How can I tell the bill of sales are authenicated? The Bill of Sale from WAMU to CHASE has signature of a Notary. It says titled 'Certification of Corporate Secretary of Chase Bank USA, N.A.'

reads as follows,

I, Andrew Semmelman, as Secretary of Chase Bank USA, N.A. a national banking association, a wholly owned subsidiary of JPMorgan Chase & Col, do hereby certify that the assets and most liabilities of Washington Mutual Bank were transferred by the Federal Deposit Insureance Corp to JPMorgan Chase Bank, N.A. on Sept. 25, 2008. Chase Bank USA N.A. purchased from JPMorgan Chase Bank, N.A. certain assets of Washington Mutual Bank including credit card accounts & receivables on Oct. 3, 2008.

IN WITNESS WHEREOF, I have hereunto affixed my name as Secretary, and the seal of this institution this 20th day of Oct. 2008, & attest that, to the best of my knowledge, this information is correct.

He then signs & it has a signature of a notorial officer (Jessica L Dempsey)

Now my account defaulted right before this buy out took place. Not sure if this means anything.

Now the CHASE bill of sale to Midland isn't notarized & the name of the Operations Manager is just a signature that I can not make out cause they did not print his name anywhere on here to identify.

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You best bet right now is to either move to strike all these documents or a motion in limine to have them precluded.

I forgot to ask how do I do this & when? I have 19 calendar days til trial. Do I have time? Thanks for your help!

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Right now, your biggest enemy may be the afidavit in lieu of testimony. Here is the governing statute in California:

CCP section 98.

A party may, in lieu of presenting direct testimony, offer the

prepared testimony of revelant witnesses in the form of affidavits or

declarations under penalty of perjury. The prepared testimony may

include, but need not be limited to, the opinions of expert

witnesses, and testimony which authenticates documentary evidence. To

the extent the contents of the prepared testimony would have been

admissible were the witness to testify orally thereto, the prepared

testimony shall be received as evidence in the case, provided that

either of the following applies:

(a) A copy has been served on the party against whom it is offered

at least 30 days prior to the trial, together with a current address

of the affiant that is within 150 miles of the place of trial, and

the affiant is available for service of process at that place for a

reasonable period of time, during the 20 days immediately prior to

trial.

(B) The statement is in the form of all or part of a deposition in

the case, and the party against whom it is offered had an

opportunity to participate in the deposition.

The court shall determine whether the affidavit or declaration

shall be read into the record in lieu of oral testimony or admitted

as a documentary exhibit.

Often, the address given is the plaintiff's law firm address. The witness is not really available for service and does not intend to testify. You can flush this out by trying to serve a subpoena on the witness. If you want to do this, you should do so immedaitely.

Here is a form:

Subpoena: http://www.courtinfo.ca.gov/forms/fillable/subp001.pdf

Fill it out. Your attorney friend can sign it for you. If he won't, bring it to the court and a clerk will sign it. Then give it to a process server and have the witness served.

If you don't serve them with a subpoena, the affidavit may be used at trial. THis doesn't mean that you can't object, however. It may be that the witness does not have personal knowledge of anything said in the affidavit. You can object on those grounds and on hearsay grounds. As the statute itself says, ""To

the extent the contents of the prepared testimony would have been

admissible were the witness to testify orally thereto, the prepared

testimony shall be received as evidence in the case"

Good luck.

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Thank You!

I thought I read somewhere if I subpoena her & she shows up & I lose I would have to pay her for he expenses. Is this true? The courthouse shows this when I pull up my case: Declaration - Other (in Lieu of Live Testimony) filed by Midland Funding LLC on 07/05/2011.

Does this mean she will show up?

TIA! :)

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Sounds like your friend has done you a dis-service. File a motion for enlargement of time, because you're not ready for trial. Attorney Generals in Minnesota and Texas have recently filed suit against Midland for robo-form affidavits. It doesn't sound as if you've conducted any discovery? At this stage of the game the court probably won't delay so you can conduct discovery. But become your own PI, examine all of their evidence, and conduct an investigation. If you can prove MIdland has done robo-forming in your case - it will be dismissed.

There are a lot of people fighting Midland right now. Would you be willing to share Midland's affidavits here for some of us to examine? We can build a central database for other consumers battling Midland.

Discover Bank is now also on the hook for fraudulent affidavits.

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Follow CaLawyer advice immediately.

If she is really from minnisota shes not coming to the California for your trail. Even if she does how is she going to authenticate any documents relating to WAMU or Chase, she never worked for them, she has no personal knoweldge to authenticate the business records......

My attorney won a trial outright against Chase, on the fact the Chase's witness didn't work for Bank One and couldn't testify or authenticate the Cardmember Agreement that Chase submitted as evidence of the contract.

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Sounds like your friend has done you a dis-service. File a motion for enlargement of time, because you're not ready for trial. Attorney Generals in Minnesota and Texas have recently filed suit against Midland for robo-form affidavits. It doesn't sound as if you've conducted any discovery? At this stage of the game the court probably won't delay so you can conduct discovery. But become your own PI, examine all of their evidence, and conduct an investigation. If you can prove MIdland has done robo-forming in your case - it will be dismissed.

There are a lot of people fighting Midland right now. Would you be willing to share Midland's affidavits here for some of us to examine? We can build a central database for other consumers battling Midland.

Discover Bank is now also on the hook for fraudulent affidavits.

Thanks for your advice, he did not do a Discovery, just a 'Form Interrogatories-Limited Civil Cases (economic Litigation)' I'm not even sure what this is they then responded w/ the CC statements & answered all the Interrogatories.

I am so upset right now since I think I am discovering he really didn't want me to win. :( I trusted him!

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Follow CaLawyer advice immediately.

If she is really from minnisota shes not coming to the California for your trail. Even if she does how is she going to authenticate any documents relating to WAMU or Chase, she never worked for them, she has no personal knoweldge to authenticate the business records......

My attorney won a trial outright against Chase, on the fact the Chase's witness didn't work for Bank One and couldn't testify or authenticate the Cardmember Agreement that Chase submitted as evidence of the contract.

Thank you! My husband is telling not to do this...he says if she doesn't show up for them than it was a waste of time & if she does show up & I lose I get to pay her vacation. I am so confused & just sick to my stomach right now.

Can I strike a motion on all documents?

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This is correct. If you subpoena a witness for trial, you have to pay their expenses. A lot of consumers can't afford this tactic. What you can do is get copies of affidavits from other people who have been sued by Midland and compare signatures. Attorney Generals in Texas and Minnesota have filed lawsuits against Midland for fraudulent affidavits.

Right now you need more time to gather evidence. Get your friend to prepare a Motion for Continuance. There's an old saying "Attorney Delay never lost a case." Your basis can be the lawsuits against Midland for Robo signing and that you need more time to obtain copies of affidavits and evidence. Typically, Courts will grant a continuance. If Midland at any time was also granted a continuance, this is a precedent. The court will not deny yours since a continuance was already granted to Midland.

Get as much time as you can (90 days) so you can do some research.

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Midland's request for statement and evidence is standard. The parties are required by law to share ALL information they plan to use at trial. Rules of Civil Procedure and Rules of Evidence require disclosure of not just evidence but witnesses you plan to call in your defense. Surprise witnesses are only in the movies.

Get your continuance. You will need to prepare a statement for Midland and you will want to prepare the same so there are no surprises at trial.

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Since a subpoenaed witness would be traveling on your dime, offer a Greyhound ticket and lodging at the dirtiest, scummiest no-tel motel in town.

This worked in a JDB suit against me... I told the plaintiff's attorney that is how I'd bring the affiant out to my trial. Needless to say, the affiant become 'unavailable' and they dismissed the case

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My question is - why "not" file a MTS anything and everything that Midland has produced?

The affidavit doesn't prove the debt, if you attack what it says as hearsay. The affiant did "not" work for the original creditor and cannot be knowledgeable as to the terms of the agreement. You've seen several MTS affidavits around here to see the "gist" of how they should read.

I'd also file a MTS any statements they submitted. The statements are not even authenticated. And I'm sure there are other avenues in which to attack these statements. Without even seeing the particulars, though, I can immediately state the items below.

1. Plaintiff has submitted into evidence an ACCOUNT STATEMENT IN SUPPORT OF PLAINTIFF'S CLAIM (hereinafter referred to as "Exhibit X").

2. The Account Statement ("Exhibit X") does not reflect an agreement or agreements by the Defendant to the alleged debt to pay the amount described.

3. The Account Statement ("Exhibit X") does not provide a complete accounting of the supposed debt which would show the accounting methods used, the itemized charges on the account, attached agreements that would reflect interest rates and fees that would be applied to the principal within the dates those supposed agreements were in "active" status and agreed by the Defendant to the terms of such agreements. The Statement also does not show if any payments were allegedly made on the account by the Defendant. Neither does it provide any copies of those payments that would make sure that the balance is accurate and the alleged debt is within the Statute of Limitations.

4. The Account Statement ("Exhibit X") is hearsay because Plaintiff does not have first hand original knowledge on this matter. The Statement has not been authenticated by the Original Creditor to prove otherwise and, as such, lacks foundation for its admission under the Business Records Act.

**You can find case law for your state to support the above "hearsay". Often times too, the account statements won't reference who the plaintiff has as the original creditor, but a different entity. That can be attacked as there has been no evidence establishing a relationship between the business entity on the statement and the original creditor or the buyers of the defaulted debt, etc. There should also be case law for your state to support this. xdancex

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How can I tell if I received BOP's? Is that the CC statements, bill of sales & the witness? Thats all I have received from them.

The Bill of Sale from CHASE to Midland looks fake. The one from WAMU to CHASE looks & is authenticated w/ a notary. I can't even read the name of the person signing for CHASE, he did not even hand write his name out. And it appears to be somethings missing. I wonder if I can take a photo & post it here, would that work? I don't have a scanner.

My Attonery friend stated he could not help me anymore. I think he is pissed I'm learning the system & that I do have rights. Plus he did not want to do a lot of work for free. KWIM? I can't blame him. I just wished he'd said this in the beginning. :?

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Including a sample Motion - it won't attach. You will need to check your Rules of Court for continuance. All court documents require a certificate of service. Some states require a verification, which a sample is included. Original to court, copy to attorney, and keep a copy for yourself.

Attach a copy of any recent article about Midland being sued as Exhibit A.

And yes, you can attack the bill of sale and affidavits, but you've got to know your Rules of Evidence. And you'll need some case law. It would definitely help if you could compare documents with other consumers that have been sued by Midland.

STATE OF_________________

______________________________ COURT

___________________COUNTY

MIDLAND FUNDING, LLC CASE #

Plaintiff

vs.

Defendant MOTION FOR CONTINUANCE

_________________________________________________________________

MOTION FOR CONTINUANCE OF TRIAL

Defendant submits a Motion for an Order of Continuance for 90 days, pursuant to ________________Rules of Civil Procedure, Rule _________, to allow Defendant sufficient time to respond to prepare for trial.

Defendant has learned that MIDLAND is being sued in a class action suit that is directly related to the issues involved in this matter and is waiting on documentation and evidence

which are relevant to the Defendant's defense. See Attached Exhibit A.

Defendant requires an additional 90 days to obtain and review that documentation in order to prepare for trial.

None of the parties will be prejudiced by this delay. This Motion is not submitted for the purpose of delay. The Parties are not requesting oral argument on this issue and Defendant requests an ex parte ruling.

VERIFICATION

I, _______________________, do hereby declare under penalty of perjury that the foregoing information and evidence contained in Defendant's Motion for Continuance are true, correct and complete based upon my personal knowledge.

____________________, Defendant

Address

Date: _______________ By:______________________________

STATE OF_________________

______________________________ COURT

___________________COUNTY

MIDLAND FUNDING, LLC CASE #

Plaintiff

vs.

Defendant

_________________________________________________________________

Certificate of Service

I, ___________________, do hereby declare that Defendant's Motion For Continuance was sent First Class Mail, postage prepaid to Plaintiff's counsel at: ________________

________________________________________and a copy was mailed to the Court.

Done this ________ day of July, 2011.

Sincerely,

_____________________, Defendant

by: _______________________

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Do the bill of sales specificly reference your account? Since this is Midland I know they do not. They do not establish anything other than someone paid some money for "Some Accounts" and you have no clue if your account was included.

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Do the bill of sales specificly reference your account? Since this is Midland I know they do not. They do not establish anything other than someone paid some money for "Some Accounts" and you have no clue if your account was included.

No it doesn't have my info at all on either BOS! The bill of sales to CHASE from WAMU show the dates & the statements show WAMU & CHASE billings w/ my name & account & address on those.

I addressed this in my response to them, by saying The Plaintiff has not proven that it is the real successor-in-interest. The Defendants demad proof of ownership specifically that the alleged account is the legal property of the Plaintiff with all of the original creditor's rights & privileges intact. (now I just sent this to them, did not file it.) It was in response to my evidence I intend to use in trial. Not sure if my mumbojumbo was any good since my friend bailed out on me at the last minute & I wanted to fight the claims.

I now realized I did not use the proper paper just plain white paper. I feel like a total idiot at this point. :(

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Will my courthouse have the correct paper to file on? And samples of MTS or forms I can use to file on? I guess I can call right now its almost 4pm here. If not I will head over in the morning see what info I can get.

I have been reading up on this law in CA & it just seems like foreign language to me. :confused:

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I'll post a sample motion to strike today on the Forum. Know this, when you're attacking admissibility, you need to know and reference your State's rules of evidence. BTW, where do you live?

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Thank you! My husband is telling not to do this...he says if she doesn't show up for them than it was a waste of time & if she does show up & I lose I get to pay her vacation.

California witness fees= chump change:

California government code section 68093:

Except as otherwise provided by law, witness' fees for each

day's actual attendance, when legally required to attend a civil

action or proceeding in the superior courts, are thirty-five dollars

($35) a day and mileage actually traveled, both ways, twenty cents

($0.20) a mile.

See also: Process Servers California : LA Process Service

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Thanks guys, I just now found pleading paper on the courthouse website. Now what do I do w/ it?

CALawyer, Where would I supeona her at? The Declaration in lieu of live testimony pursuant to C.C.P 98 starts off by saying:

Whose business address is 16 McLeland Rd Suite 101, St. Cloud, MN 56303, certifies and says:

1. I am employed as a Legal Specia list & have access to pertinent account records for Midland Credit Management Inc, servicer of this account on behalf of plaintiff. I am a competent person over eighteen years of age, & make the statements herein based upon personal knowledge of those account records maintained on plaintiff's behalf. plaintiff is the current owner of, & or successor to, the obligation sued upon, & ws assigned all the rights, title & interest to defendant's Washington Mutual Bank account XXXXXXXXXXXX6782 (MCM # blahblahblah)(heeinafter "the account") I have access to & have reviewed the records pertaining the account & am authorized to make this affidavit on plaintiff's behalf.

I will write the rest when I get back from taking my kids to the Dentist. Did not realized it was almost 3pm. UGH!!! :(

Edited by VLDCA

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Thanks guys, I just now found pleading paper on the courthouse website. Now what do I do w/ it?

CALawyer, Where would I supeona her at? The Declaration in lieu of live testimony pursuant to C.C.P 98 starts off by saying:

Ashley Hoffman, whose business address is 16 McLeland Rd Suite 101, St. Cloud, MN 56303, certifies and says:

CCP 98 requires the affiant to specify "a current address

of the affiant that is within 150 miles of the place of trial, and

the affiant is available for service of process at that place for a

reasonable period of time, during the 20 days immediately prior to

trial."

If they did not do this, the Court should rule that the affidavit is inadmissible.

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Here's a sample Motion to Strike. It's an outline, you'll need to add your State Court Rules and some case law to support your Motion. Don't forget Memorandum of law, affidavit, and certificate of service.

STATE OF ______________________________

_______________________________COURT

___________________________COUNTY

MIDLAND FUNDING, LLC

Plaintiff

vs.

Defendant

___________________________________________________________________

MOTION TO STRIKE

COMES NOW, Defendant ____________________ and submits a Motion to Strike Plaintiffs affidavits pursuant to California Rules of Civil Procedure, Rule _____ and California Rules of Evidence. Attached Affidavit(s) submitted by Plaintiff are inadmissible in that the witness lacks personal knowledge of this matter. As a result, Plaintiff's supporting affidavit is impertinent and irrelevant and should be stricken from the record. Defendant's Memorandum of Law and Affidavit in Support are attached.

STATEMENT OF THE CASE

Lay out the facts of the case up until this point in time.

Summons and Complaint, Nature of the Case

Discovery, Disputes, etc.

MEMORANDUM OF LAW

In this section list your rules of court and evidence that support your motion.

You should also include case law to support your position.

CONCLUSION

This is your summary and includes your prayer for relief.

_________________, Defendant

Address

By: _______________________ Date: _______________

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