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being sued by Midland Funding CA


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Hello,

I'm a newbie at all of this. I just got served a summons today and I stumbled on this forum and searched and read everything I can find regarding Midland Funding and cases with them in California.

This is what I received:

-Civil Case Cover Sheet: Being sued by Midland Funding LLC, in the amount of $9900.00.

-Complaint Contract the original Creditor is: Citibank (for which I ran a credit report with the 3 reporting agencies and found no Citibank account).

-First Cause of Action - Common Counts for which it states: this was within the last 4 yrs, the account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff ( I signed no such thing)

-statement of Location/Venue

-ADR Information Packet/form

The papers were served to me at my home in CA and I received no prior correspondence from Midland (well not sure, if it looked like junk mail it got disposed) and the summons says I have 30 days to respond to this summons. The summons is dated Oct 11, 2011 and I received the summons today Oct 14. It's a limited Civil Case trying to collect a debt.

So what are the steps I need to take to respond to these allegation? Is there a specific form I fill out denying these allegations? How do I get the lawyers representing Midland to provide all the documents I signed and statements that states what I supposedly purchased?

Thank You for any/all advice in this late hour in California.

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If all they are alleging is account stated then you have to answer.

If they have causes for goods and wares recieved or money lent. or open book account then find CAlawyers very fine Bill of Particulars on here they are in like 100 posts. fill it out and send it to them Certified Mail Return Receipt Requested.

They are supposed to send to you all the paperwork and documents or risk being excluded from bringing them at trial.

The answer would be asap to prevent default.

Post the wording of the complaint so we can see what causes of action they are suing on.

welcome to credit info center.

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So what are the steps I need to take to respond to these allegation? Is there a specific form I fill out denying these allegations? How do I get the lawyers representing Midland to provide all the documents I signed and statements that states what I supposedly purchased?

Thank You for any/all advice in this late hour in California.

Welcome.

There are two possible forms to use. The first is a general denial:

http://www.courtinfo.ca.gov/forms/fillable/pld050.pdf

You can use this form if the complaint is not verified and, under certain circumstances listed on the form itself, even if it is verified. A complaint is verified when the plaintiff swears, under penalty of perjury, that the facts set forth in the complaint are true. The advantage of using this form (if you can) is that you don't need to go paragraph-by-paragraph through the complaint denying or admitting each one.

The next form is the answer to contract causes of action:

http://www.courtinfo.ca.gov/forms/fillable/pldc010.pdf

You can use this form if the complaint is verified.

Here is a link to a website with step-by-step information on filling out the forms and serving it on the plaintiff when you are done:

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

As far as requesting information is concerned, I like to send a Bill of Particulars. Here is a link to a post I did recently that describes the difference between a BOP and written dsicvery:http://www.creditinfocenter.com/forums/there-lawyer-house/309078-motions-compel-bop-vs-written-discovery-cal.html

Search for my posts and "Bill of Particulars" or BOP and you will find lots of information.

Good luck.

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Thank You CALAWYER for your response. I got myself all worked up when I received this summons that I got sick and I'm just now catching up on all the prior posts from you to others to fight Midland.

So I plan to use the General Denial form and deny that I have no recollection of opening said account with plaintiff and because defendant is unaware of said account could not have stated in writing between defendant and plaintiff in which the defendant was indebted to the plaintiff. Defendant denies that within the last four years purchased for goods, wares, and merchandise sold and delivered to defendant for which defendant promised to pay plaintiff the sum of $x,xxx.xx. Defendant also denies that plaintiff lent money at defendant's request.

Is this sufficient for the general denial?

Now about the affirmative defenses. I saw on the step-by-step on how to fill out these forms and at the end there was a list of affirmative defenses but I'm not sure which applies to me or what I can use. I tried to see what others have used and I didn't see any except maybe using SOL and Lack of Privity. So I'm not sure how to incorporate it in the denial section and not sure if there are other affirmative defenses I can use.

Thank You for all you advice. It's not hopeless after all.

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Seadragon,

I saw your post on Affirmative defenses that you laid out for user: lbell101 in AZ back in Sept 2011. Will those affirmative defenses work for me in California?

BTW - does anyone know what the following means: The following statement is found on 1st Cause of Action: Midland Funding alleges defendant became indebted to [X] other: The account now owned by plaintiff. Plaintiff's predecessor in interest is Citibank. <--- What does this mean? Anyone??

As I dig deeper this sight becomes more intriguing. Thanks.

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1stStep thank you for clarifying. No, I haven't yet as I am still filling out general denial and I was looking thru past posts for affirmative defenses I can use in mine before sending it off.

Keep in mind if you use affirmative those defenses are yours to prove. They don't have the burden to disprove your affirmative defenses.

So if you plead an affirmative defense with no facts to back it up, expect an interrogatory asking you to state with specific detail the facts of your affirmative defense. You don't answer that (which you probably can't) they will move to strike the defense. If you have no other defenses or all yours are affirmative that get struck, it could be summary judgement.

Think long and hard before using affirmative defenses. Generally speaking, they are losers in credit card disputes. Others will disagree, but I've yet to see one time an affirmative defense other than statute of limitations or failure to state a claim has worked for a cc case.

And lack of standing or failure to provide detailed facts in the complaint that would meet their burden at trial are not affirmative defenses. They are great and wonderful defenses that should be used but they are not affirmative defenses.

Be careful in shifting the burden of proof from them to you. They have a certain burden they must meet to win. That is a huge advantage you have, one that should not be given up without great thought and consideration.

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Thank You CALAWYER for your response. I got myself all worked up when I received this summons that I got sick and I'm just now catching up on all the prior posts from you to others to fight Midland.

So I plan to use the General Denial form and deny that I have no recollection of opening said account with plaintiff and because defendant is unaware of said account could not have stated in writing between defendant and plaintiff in which the defendant was indebted to the plaintiff. Defendant denies that within the last four years purchased for goods, wares, and merchandise sold and delivered to defendant for which defendant promised to pay plaintiff the sum of $x,xxx.xx. Defendant also denies that plaintiff lent money at defendant's request.

Is this sufficient for the general denial?

.

When you fill out the general denial, paragraph 1 denies every allegation in the complaint. You don't have to specifically deny that you are unaware of the account, etc.

Affirmative defenses depend on the facts of your case. Make sure you allege the statute of limitations if you think it is possible plaintiff waited too long. The link I gave you should give you some guidance as to the rest.

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while you haven't sent it they are gaining time to get the stuff. also if you know that they have no standing demurrer is available.

the general denial is good and doesn't compromise your position. for affirmative defenses I would go with the defendant reserves the right to plead additional affirmative defenses at a later time. defense.

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and now would like to know... I am getting ready to send a copy of answer to the plaintiff's attorney w/POS but I also have my BOP ready. Can I add the BOP to this POS and send it along with my ANSWER? or do I need to do this as a separate POS/CMRRR?

Once I send this and wait for their responses what should I be researching. I've already researched things on Open Book Account (on the complaint), researching meet & confer, reviewing calawyer's motion to compel BOP. Anything else??

Thanks...

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Hey ColtFan, not looking to save any money. Just thought since BOP is ready when I filed my answer why not send it altogether.

Hey Iststep thanks for that insight on BOP.

I probably didn't answer in time for you but for future reference you can serve muliple documents at the same time. On the form, just list each doument by its title in item #3: http://www.courts.ca.gov/documents/pos030.pdf

Or, you can check the box in item 3 and use an atachment: http://www.courts.ca.gov/documents/pos030d.pdf

You will have one envelope and can send the whole thing CMRRR.

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You should probably wait until discovery is complete before asserting any defenses. That way, you know what they have, what they don't have, and what mistakes they made when they answered your requests. Mostly paralegals answer these, and they will usually screw up. They'll either leave something out, admit to something they shouldn't have, or admit that they don't have documents, etc. Find out what the court requires for proof and ask them provide it. If they don't provide it on the first inquiry, don't ask again. Let their mistakes work in your favor. Ask twice, they might just come up with something.

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calawyer, thank you for the info regarding POS.

legaleagle Thank you for that insight but panicked when I received CMC order and didn't see any post as to how to proceed until calawyer xangelx saved the day and put me on the right path again. But I have been gathering everything I have read here on this forum for my defense. :rolleyes:

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for that information for future reference. I kind of thought it would be possible but being I'm a newbie I sent i separately.

But I found some interesting info that may help everyone in this forum but can't post a link until I have 20 posts. So here goes....15th post 5 more to go.

helpme.8]

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Hello All,

After reading the FDCPA rules, I just realized that they violated 2 of my rights:

1. They had no initial communication and serving me a summons is not considered an initial contact (15 USC 1692g Section 809)

2. Harassment or Abuse, if they reported the debt to a consumer reporting agency without first having the debt validated (15 USC 1692d Section 806c.

I called the FTC dept and filed the complaint. They suggested I call all the credit agencies and dispute the entry due to violation and send a letter to the State Attorney General's office.

So everyone check your credit report. Will followup with a link once I;m able to in this regard.

Hope this helps... 16 posts and 4 more to go.

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Again in doing my research I cam across this that might help with: Debt Validation, Discovery etc:

DEBT COLLECTOR DISCLOSURE STATEMENT

This statement and the answers contained herein may be used by Respondent, if necessary, in any court of competent jurisdiction.

Notice: This Debt Collector Disclosure Statement is not a substitute for, nor the equivalent of, the hereinabove-requested verification of the record, i.e. “Confirmation of correctness, truth, or authenticity, by affidavit, oath, or deposition” (Black’s Law Dictionary, Sixth Edition, 1990), re the alleged debt, and must be completed in accordance with the Fair Debt Collection Practices Act, 15 USC §1692g, applicable portions of Truth in Lending (Regulation Z), 12 CFR 226, and demands as cited above Disputed Debt. Debt Collector must make all required disclosures clearly and conspicuously in writing re the following:

1.Name of Debt Collector:

2.Address of Debt Collector:

3.Name of alleged Debtor:

4. Address of alleged Debtor:

5. Alleged Account Number:

6.Alleged debt owed: $

7.Date alleged debt became payable:

8.Re this alleged account, what is the name and address of the alleged Original Creditor, if different from Debt Collector?

9. Re this alleged account, if Debt Collector is different from alleged Original Creditor, does Debt Collector have a bona fide affidavit of assignment to enter into alleged original contract between alleged Original Creditor and alleged Debtor?

YES NO

10. Did Debt Collector purchase this alleged account from the alleged Original Creditor? YES NO N/A (Not Applicable)

there are more questions but I need to break it down so I can get 20 posts. More to come.

:)++

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