Sleepless in California

Being sued by Midland Funding, questions regarding discovery

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I went to court for CMC and Judge ordered continuance to complete discovery. Midland's attorney sent updated Case Management Statement to the court saying discovery is complete (which is not true) and they are asking for a trial date. However, Midland Funding never sent me any discovery nor have I sent them any discovery yet. Further CMC is in late 2011.

I am representing myself in this case, and asked them for Bill of Particulars which they sent copies of 2 years of statements and a printout saying they are now the owners of this debt which they obtained from Original Creditor - WAMU, and nothing was authenticated.

I sent Midland a letter stating that their response was insufficient and requested all proof that I am entitled to under CCP section 454.

This is why I have not prepared my discovery yet.

The Original Creditor was Providian who sold debt to WAMU, who sold it to Chase. Can Midland claim Washington Mutual was the OC when it was actually Providian that had the account (and WAMU sold this account to Chase). Thanks for any advice.

Edited by Sleepless in California
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Have you sent Midland a meet and confer letter regarding the insufficient BoP response? If not, send them a letter stating that they, under CCP 454 must itemize all transactions over the life of the account. Failure to do so will lead to motion to compel with sanction and/or a motion to preclude.

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The Original Creditor was Providian who sold debt to WAMU, who sold it to Chase. Can Midland claim Washington Mutual was the OC when it was actually Providian that had the account (and WAMU sold this account to Chase). Thanks for any advice.

They are never going to be able to prove that they own this debt. Explain more precisely what they produced to you about the assignment.

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Midland sent me their response to my first Demand for Bill of Particulars -

1. A generic statement sent to me which states: The above-reference account was purchased from the Original Creditor Washington Mutual by Midland Funding, LLC and is serviced by Midland Credit Management, Inc., "MCM" is a debt collector.

The balance of $2,000 is due by late 2009.

They list the original account number and Midland's account number.

2. Two years of statements, from late 2007 to early 2009, they look like a computer printout with portions in the account summary area blacked out. The printouts list my name and address on them.

(my account started with Providian in the 1990's, and then charged off by Washington Mutual).

My credit report shows that Midland opened this account in the summer of 2009 with a different account number stating it was past due over $2,000.

Although my credit report shows that Chase was the most recent owner of this account number, not Washington Mutual, and Chase transfered it to another office.

So how can Midland purchase this from Washington Mutual as they claim and not from Chase?

Here is what I question about Midland - The top of Midland's statement says it purchased this account in late 2009, so how could they put on my credit report that they purchased the account in early 2009?

This is all I have received from them. I recently sent them an Insufficient Bill of Particulars letter stating I want all the information they have on this account and I want it authenticated within 10 days.

Any suggestions of how how I proceed from here would be greatly appreciated.

Edited by Sleepless in California

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Midland sent me their response to my first Demand for Bill of Particulars -

1. A generic statement sent to me which states: The above-reference account was purchased from the Original Creditor Washington Mutual by Midland Funding, LLC and is serviced by Midland Credit Management, Inc., "MCM" is a debt collector.

The balance of $3,000 is due by late 2009.

They list the original account number and Midland's account number.

2. Two years of statements, from late 2007 to early 2009, they look like a computer printout with portions in the account summary area blacked out. The printouts list my name and address on them.

(my account started with Providian in the 1990's, and then charged off by Washington Mutual).

My credit report shows that Midland opened this account in the summer of 2009 with a different account number stating it was past due over $3,000.

Although my credit report shows that Chase was the most recent owner of this account number, not Washington Mutual, and Chase transfered it to another office.

So how can Midland purchase this from Washington Mutual as they claim and not from Chase?

Here is what I question about Midland - The top of Midland's statement says it purchased this account in late 2009, so how could they put on my credit report that they purchased the account in early 2009?

This is all I have received from them. I recently sent them an Insufficient Bill of Particulars letter stating I want all the information they have on this account and I want it authenticated within 10 days.

Any suggestions of how how I proceed from here would be greatly appreciated.

They will say that everything was transferred from Wa Mu to Chase. Might even have some document (that they won't be able to authenticate). But didn't you say the original assignment was from Providian? I don't think they will be able to establish that.

Do they say in the complaint that it was originally a providian account? Are they giving you Providian account statements?

If so, I would do a single document request:

ALL DOCUMENTS evidencing any assignment of the claim at issue in this litigation from the original creditor to YOU.

If you have to move to compel, it will be an easy motion.

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Providian was the original creditor in the 1990's.

The statement from Midland states they have purchased the account from the original creditor Washington Mutual. However the original creditor was Providian (long before Washington Mutual became involved.)

On the printouts of the statements, they sent me which are for 2 years starting in late 2007, it does say Providian at the very top left corner but lists Washington Mutual Card Services. Curious why sections are blacked out on the account summary part of the billing statements they sent.

Midland has never mentioned Providian in their complaint nor in any correspondence they have sent to me

I have one other concern with Midland ...they sent their 2nd Case Management Statement to the court and checked the box for Discovery Complete.

Now they are asking for a trial date further out - 90 to 120 days

How can Midland say discovery is complete when they never sent me any discovery and I have not sent them any discovery yet, as well.

I am really concerned about their Case Management Statement which says Discovery Complete.

I have another CMC in late 2011 so should I send them any Discovery? Thanks so much for any suggestions that might help me in my case with Midland.

Edited by Sleepless in California

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You need to do 2 things and FAST!!

1. Send a meet and confer regarding the insufficient BoP;

2. File your own case management statement stating that Midland has failed to complete your request for a BoP - discovery is still outstanding.

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What is a meet and confer?

I did send Midland a letter stating that their response was insufficient and requested all proof that I am entitled to under CCP section 454, and I expected this within ten days. (This is why I have not prepared my discovery yet.)

I will prepare my Case Management Statement tonight and mail it to the court tomorrow. Thank you

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Should I list this in the section of the Case Management Statement under Discovery 17C which states "the following Discovery issues are anticipated"

I will put in this section: Midland has failed to complete my request for a Bill of Particulars - discovery is still outstanding. thank you

Edited by Sleepless in California

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Essentially yes, you want the court to be aware they've failed to comply with your BoP request.

Also, you may want to start work on a motion in limine/compel with sanctions.

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I finished my Case Management Statement and will mail it tomorrow to the court and Midland's attorney.

Should I still prepare Discovery for Midland.

Since they have not sent a complete response to my BOP, and I am still waiting to see if they respond to the letter I sent them regarding Insufficient BOP. Would this letter be considered a Meet and Confer.

Thanks for all your guidance (this can be so overwhelming at times) I will research how to do the Motions.

Edited by Sleepless in California

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Would this letter be considered a Meet and Confer.

Yes...you contacted the plaintiff and informed them of the incompleteness of the BoP. This will help to document that you attempted to resolve this before filing a motion with the court.

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I have another CMC in late October so should I send them any Discovery? Thanks so much for any suggestions that might help me in my case with Midland.

Read my post just above this one. Send them the document request I drafted for you.

Good luck.

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They will say that everything was transferred from Wa Mu to Chase. Might even have some document (that they won't be able to authenticate). But didn't you say the original assignment was from Providian? I don't think they will be able to establish that.

Do they say in the complaint that it was originally a providian account? Are they giving you Providian account statements?

If so, I would do a single document .

Does it make a difference that Wamu Aquired Providian in whole back in like 2005? At that point Providian became Wamu... so they should have all the docs and records. The loans would not have been assigned, just assimilated.

-=PO

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The thing is that the JDB has to prove an unbroken chain of title, identifying all owners of the alleged debt.

They need to state that WaMu acquired Providian, even if it's public knowledge. If they can't or won't then you can state that the plaintiff lacks standing to sue as they cannot identify all previous owners of the account.

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The CMC statement was mailed to the court and Midland

Calawyer, I am looking up how to fill out a pleading for the Request for Production of Documents and I will use the phrasing you said in your draft.

Do I ask Midland to send me any documents they have in the pleading or do I have to request a place to review the documents they have?

Thanks for all the help that has been provided.

Edited by Sleepless in California

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this is what I have so far for the Demand for Production of Records.

REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE

Pursuant to California Code of Civil Procedure section 2031.010 et seq., Defendant requires that Plaintiff AND THEIR ATTORNEY OF RECORD produce the following documents:

REQUEST NO. ONE: DEMAND IS HEREBY MADE UPON YOU for ALL DOCUMENTS evidencing any assignment of the claim at issue in this litigation from Original Creditor to YOU.

Should I use the CCP Section 2031.010 as I have it?

Do I have to send a time for them to respond back to my request

ex: within 30 days?

any help regarding my Request for POD would be greatly appreciated.

Edited by Sleepless in California

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I usually start it out like this:

Defendant hereby propounds to you the following Requests for Production to which you are to respond within thirty (30) days in accordance with Code of Civil Procedure §2031.210 et seq. The Documents requested shall be produced for inspection or sampling at _________[insert your address]

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Thank you calawyer, this is what I put after what you suggested

Documents requested shall be produced for inspection or sampling at ...

REQUEST NO. ONE: DEMAND IS HEREBY MADE UPON YOU for ALL DOCUMENTS evidencing any assignment of the claim....

should I add a proof of service to the pleading? if so, do I send the original proof to court. Would you recommend I send this certified mail.

Thanks again for your help.

Edited by Sleepless in California

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Thank you calawyer, this is what I put after what you suggested

Documents requested shall be produced for inspection or sampling at ...

REQUEST NO. ONE: DEMAND IS HEREBY MADE UPON YOU for ALL DOCUMENTS evidencing any assignment of the claim....

should I add a proof of service to the pleading? if so, do I send the original proof to court. Would you recommend I send this certified mail.

Thanks again for your help.

This goes on Pleading paper and should look something like this: Sample Request for Production of Documents to Plaintiff.

Do not send to the Court.

Do a proof of service.

Regular mail is fine.

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Thanks again calawyer and 1stStep for all your help - I was spending too many sleepless nights on this ....

This is how I presented my Request for Production

TO PLAINTIFF AND HIS ATTORNEY OF RECORD:

PLEASE TAKE NOTICE THAT pursuant to California Code of Civil Procedure §§2031.010 and 2031.210 et seq., you are directed to respond separately, under oath in writing to each to each and every category of documents set forth herein, within thirty (30) days of service of this request.

Defendant hereby propounds to you the following Requests for Production of Documents to which you are to respond within thirty (30) days. The Documents requested shall be produced for inspection or sampling at xxxxx.

REQUEST NO. ONE: Request is made upon you for all docs......

Do I allow 30 days for them to respond, and if they do not respond, what will be the next step to take (already sent a second bill of particulars and they never responded)

Should I start working on a Motion to Compel or Motion in Limine (not sure what this means though). :?

Any suggestions would be greatly appreciated.

Edited by Sleepless in California

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Thanks again calawyer and 1stStep for all your help - I was spending too many sleepless nights on this ....

This is how I presented my Request for Production

TO PLAINTIFF AND HIS ATTORNEY OF RECORD:

PLEASE TAKE NOTICE THAT pursuant to California Code of Civil Procedure §§2031.010 and 2031.210 et seq., you are directed to respond separately, under oath in writing to each to each and every category of documents set forth herein, within thirty (30) days of service of this request.

Defendant hereby propounds to you the following Requests for Production of Documents to which you are to respond within thirty (30) days. The Documents requested shall be produced for inspection or sampling at xxxxx.

REQUEST NO. ONE: Request is made upon you for all docs......

Do I allow 30 days for them to respond, and if they do not respond, what will be the next step to take (already sent a second bill of particulars and they never responded)

Should I start working on a Motion to Compel or Motion in Limine (not sure what this means though). :?

Any suggestions would be greatly appreciated.

Sounds like you have enough time for a motion to compel... you may have to meet and confer depending on your court rules (california is yes), so send a letter requesting the meet and confer with regard to the items on the bill of particulars. If they ignore that you have proof it was attempted and can go on with the motion to compel.

-=PO

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In your memorandum of points and authorities, you state the facts...

"Plaintiff was sent BoP on <DATE> and did not respond in 10 days. Defendant sent meet and confer letter on <DATE 2> reminding plaintiff of the time to respond per CCP 454. Plaintiff, as of the filing date of this motion, has failed to respond...."

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I am looking into how to write a Motion to Compel. Do i need to attach any exhibits to this motion. Any suggestions would be appreciated.

You must first allow plaintiff time to respond (30 days plus 5 if the request was mailed). If the response is insufficient, you must meet and confer prior to filing a motion to compel. Often, the plaintiff will agree to supplement its responses rendering a motion to compel unnecessary.

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