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Meli vs Midland - Questions on case answered - Please help!


Meli
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1. Who is the named plaintiff in the suit? Midland Funding LLC (a.k.a. junk debt punks).

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Legal Recovery Law Office.

3. How much are you being sued for? $5,700.00

4. Who is the original creditor? (if not the Plaintiff) First National Bank of Omaha

5. How do you know you are being sued? (You were served, right?) My husband answered our door but the process server left no paperwork with him. I decided to do a name search a few days later and found the case against me.

6. How were you served? (Mail, In person, Notice on door) They claim they personally served me on 1/24/2012 at 8:44 PM.

7. Was the service legal as required by your state? I don’t believe so since no paperwork was not left and I didn't receive anything in the mail.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None.

9. What state and county do you live in? San Diego County, CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 5/2009

11. What is the SOL on the debt? 4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

*I have 30 days to respond to the case but cannot say that I understand the next steps involved in defending myself.

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

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Nope – too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Complaint for money

1. Breach of written contract

2. Account stated

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

*Nothing is attached to the paperwork except the declarations from the process servers (1 failed attempt to serve me at an old address and the bogus proof of service of summons).

Does the 30 days to respond start from the date the complaint was filed 1/11/12 or when I was "served" (process server claims 1/24/2012). I'm just so grateful that I found this case before a judgment could be issued against me.

I'd appreciate any feedback you all might have - thank you in advance!!

Edited by Meli
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I've been reading and searching as many threads as possible and my eyes are crossing!

I'd love input on whether I should just do a general denial in my answer. Your expertise, feedback, and thoughts on my case would be much appreciated :)

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If the complaint isn't verified (and it appears they rarely are in CA), then should I use the General Denial Form (PLD-050). If I use this form then I don't have the chance to state an affirmative defense. Does that hurt my case? Are there benefits to using PLD-010 instead so I can state my affirmative defense?

Once I figure out which form to use for my answer, then I will need to submit a request for a BOP, right?

I'd love feedback from others that have gone the BOP route versus the Discovery route. How does the BOP get submitted and when should I submit it?

Thank you all for your help!

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  • 3 weeks later...
I sent the general denial and the BOP on 2/15. I filed the general denial with the court on 2/16.

Now what should I do or be preparing to do?

Maybe it's OK in Cali, but perhaps you should have filed the general denial, then sent an endorsed copy of it? If this is the case, I'd be sending them an endorsed copy tomorrow.

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...first of all, check at your local library for the book:

Win Your Lawsuit, Sue in California Superior Court without a Lawyer by Judge Roderic Duncan.

It is written primarily for the "Plaintiff" suing someone--but it is still incredibly helpful in that it teaches what the "Plaintiff" needs to prove it's case in addition to valuable insight to the legal process. There are important forms provided in the book that you'll need along the way. ;)

2. Get (or create) a calendar you can write court deadlines on.

You want to know exactly when the BOP is due back to you, and hold them to that deadline (allowing for mailing time, etc.).

You'll also want to keep track of dates due of any discovery that is served upon you. If you don't return those documents in time, it is detrimental to your case.

3. Start reading threads here on "Discovery." And if you get the book mentioned above, study that section.

There are reasons members of this board recommend hitting them immediately with the BOP (which you can find in a thread I'll link from calawyer).

While you'll read lots of threads here where people request a lot of discovery and are very specific in what they ask for during discovery, you have to weigh for yourself if that's how you want to play it for your case or not. (We chose not to go that route).

Bottom line--They sued you.

The burden of proof to PROVE their case is on them. But building a defense, you need to know what they do (or don't have) to prove their case. ;)

Discovery is the period where both sides see what the other side has, in terms of evidence. You don't want to fall into the trap of enabling them to prove their case w/what you say or offer them during the discovery period. Make them prove their case, and present you w/the evidence they have (or don't have).

Here's a thread I bookmarked that I found particularly helpful in regard to discovery (i.e. what to ask---and not ask for)...during discovery. Hope it helps you, too!

http://www.creditinfocenter.com/forums/there-lawyer-house/303360-strategy-pros-chime.html

(Be sure to click on the link in post #2 by Debtor'sHusband a Californian)

Here's a thread regarding BOP's vs. written discovery that I mentioned above (hope you find it helpful):

http://www.creditinfocenter.com/forums/there-lawyer-house/309078-motions-compel-bop-vs-written-discovery-cal.html

best to you!

:)++

Edited by tigger
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...

2. Get (or create) a calendar you can write court deadlines on.

You want to know exactly when the BOP is due back to you, and hold them to that deadline (allowing for mailing time, etc.).

This was very IMPORTANT for me. I wrote down everything on a calendar in a binder that I had built for my defense. I wrote down when I mailed things (ie..meet & confer letters, when I sent my BOP Request), when I got the green card back(cmrrr) I wrote down when the Plaintiff received it. When Responses from Plaintiff were due. When I needed to mtc BOP, I had to calculate 16 days + 5 days mailing then requested a hearing date. I didn't just pick a Date. I made a suggestion to the courts as to when I was available and that was the starting point for the courts to set a hearing date.

You'll also want to keep track of dates due of any discovery that is served upon you. If you don't return those documents in time, it is detrimental to your case.
Midland missed their deadline with me to respond to my PODS/ROGS/RFAS. I even gave them 1 week past the deadline (per calawyer) to send a m&c letter to them. The day I was to send this letter guess what I received. Yes, their responses. ALL OBJECTIONS. So lesson learned here is the link: http://www.creditinfocenter.com/forums/there-lawyer-house/309078-motions-compel-bop-vs-written-discovery-cal.html

Read this before you send a ton of requests only to have to answer each one of their objections individually. ALOT of TYPING and THOUGHT goes into this when you respond to their objections. It took me a week and half to respond to all their objections. I sent one m&c letter for documents, 1 for Rogs and 1 for admission. It confused their lawyer so much that he thought since he was getting a rog letter I dismissed the doc letter and so forth. He ended up calling me to m&c and I said to him "where in any of those letters stated I dismissed my other m&c letter". And you don't want to hear his response. TOOO FUNNY.

While you'll read lots of threads here where people request a lot of discovery and are very specific in what they ask for during discovery, you have to weigh for yourself if that's how you want to play it for your case or not. (We chose not to go that route).

Bottom line--They sued you.

The burden of proof to PROVE their case is on them. But building a defense, you need to know what they do (or don't have) to prove their case. ;)

Yes, the Burden of Proof is on them. I tried to use the BOP to see what they had. I sent 3 m&c letters within a month and half. When Plaintiff's didn't respond, I sent off my discoveries but only requested what the BOP (by law) allowed the Plaintiff's to provide. I was able to go the the law library and make copies of the pages on BOP so I knew within my rights what Plaintiff should give me. This gave me the courage to file mtc BOP. Which of course never happened.

Discovery is the period where both sides see what the other side has, in terms of evidence. You don't want to fall into the trap of enabling them to prove their case w/what you say or offer them during the discovery period. Make them prove their case, and present you w/the evidence they have (or don't have).

Edited by helpme
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Midland missed their deadline with me to respond to my PODS/ROGS/RFAS. I even gave them 1 week past the deadline (per calawyer) to send a m&c letter to them. The day I was to send this letter guess what I received. Yes, their responses. ALL OBJECTIONS.

It's very interesting to me how different some of the jdb's handle their cases. Midland seems super sloppy, yet at the same time seems more than willing to prosecute/fight to the end.

help me brings up a great point, above. :)%

If you keep up w/all the deadlines, etc., know your rules of court, you may be able to trip them up on their sloppy procedure. At the very least, you may be able to catch them in their own web of lies and deceit.

In our case, the JDB barely prosecuted us. They served no discovery. They even filed for a non-appearance Case management conference. They returned no phone calls, didn't respond to our meet and confers, NOTHING. They spent all their time sending us settlement offers, as opposed to actually building/trying their case.

The law firm on our case, was also a jdb collector. They have a template for how they tend to try these cases, and how they attempt to win in the final hour--by trying to scare pro-se defendants w/a CCP98 the last month before trial. We were no exception.

The law firm clearly didn't give the paperwork from the JDB a second glance before sending it to us. :lol: They just stamped it w/their firm stamp, attached proof of service and sent it via UPS. The more we looked at it, the more errors and ways we found it hurt their case (and helped us...:D)

It was riddled with contradictions against the original complaint, and fraudulently notarized. :shock:

While my relative was still nervous going into trial--I couldn't wait to present the judge with that bogus affidavit. :twisted:

We never got the chance, as they sent a rent-a-lawyer to dismiss the morning of trial.

Edited by tigger
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They refused my request for a Bill of Particulars saying, "A demand for bill of particulars may be served on the plaintiff only in an action on "an account." As stated in the Code: "It is not necessary for a party to set forth in pleading the items of an account therein alleged, but he must deliver to the adverse party after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof..." A bill of particulars is not appropriate in an action on an account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: i.e., there is nothing left to itemize. [Ahlbin v. Crescent Commercial Corp. (1950) - I saw this in a post from Chiquita55 too.

Plaintiff's complaint alleges breach of contract and account stated as causes of action. As such it is plaintiff's position Bill of particulars is inapplicable to plaintiff's cause of action.

My question: Now what?

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I found this great thread that might be helpful to others also in this situation:

http://www.creditinfocenter.com/forums/there-lawyer-house/311860-why-advised-send-meet-confer-bop.html

I have a few examples now for a response to their inadequate BOP. Should I send it on regular paper and include the BOP letter again? Do I file anything with the court?

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They refused my request for a Bill of Particulars saying, "A demand for bill of particulars may be served on the plaintiff only in an action on "an account." As stated in the Code: "It is not necessary for a party to set forth in pleading the items of an account therein alleged, but he must deliver to the adverse party after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof..." A bill of particulars is not appropriate in an action on an account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: i.e., there is nothing left to itemize. [Ahlbin v. Crescent Commercial Corp. (1950) - I saw this in a post from Chiquita55 too.

Plaintiff's complaint alleges breach of contract and account stated as causes of action. As such it is plaintiff's position Bill of particulars is inapplicable to plaintiff's cause of action.

My question: Now what?

Meli,

You can state in your meet&confer the following:

Plaintiff's refusal to comply with CCP 454 is without merit. Since the complaint was framed in the form of common counts the Defendant is entitled to demand a Bill of Particulars. Plaintiff is correct that a Bill of Particular is not appropriate for the cause of action: Account Stated. However, since the complaint also alleges a cause of action for Breach of Contract, the request for a Bill of Particulars is then appropriate.

Furthermore, the Bill of Particulars is to apprise the Defendant of the details of the Plaintiff's claim in order that the Defendant may intelligently present her defenses. As such, Defendant feels the Plaintiff and his Attorney on record had ample time to gather the necessary documents entitled to the Defendant.

However, in good faith, Defendant will allow 10 days from the date of this letter to comply, at which time if Plaintiff fails to provide what is entitled to the Defendant under section 454, Defendant will move the Court for an order precluding Plaintiff from offering any such evidence at trial.

BTW-Send this cmrrr.

Edited by helpme
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Meli,

You can state in your meet&confer the following:

Plaintiff's refusal to comply with CCP 454 is without merit. Since the complaint was framed in the form of common counts the Defendant is entitled to demand a Bill of Particulars. Plaintiff is correct that a Bill of Particular is not appropriate for the cause of action: Account Stated. However, since the complaint also alleges a cause of action for Breach of Contract, the request for a Bill of Particulars is then appropriate.

Furthermore, the Bill of Particulars is to apprise the Defendant of the details of the Plaintiff's claim in order that the Defendant may intelligently present her defenses. As such, Defendant feels the Plaintiff and his Attorney on record had ample time to gather the necessary documents entitled to the Defendant.

However, in good faith, Defendant will allow 10 days from the date of this letter to comply, at which time if Plaintiff fails to provide what is entitled to the Defendant under section 454, Defendant will move the Court for an order precluding Plaintiff from offering any such evidence at trial.

BTW-Send this cmrrr.

This is perfect!

Thank you so much!

Does anything get filed with the court or do I just keep the records for myself?

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This is perfect!

Thank you so much!

Does anything get filed with the court or do I just keep the records for myself?

Keep it for yourself. You will only need this if you mtc or preclude to show the courts you have tried to resolve this on your own without relief from the courts. Have a good day.

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I received a packet of paperwork requesting a bunch of financial information like how much I make and what my bills are on a monthly basis.

Do I have to fill all of this out? Any tips on what to do next?

The mandatory Settlement Conference is scheduled for 3/26. Yikes!

I also sent my 2nd request for the BOP on 2/18 (13 days ago) and have gotten nothing back from them even though one of the complaints is breach of contract.

I could really use some guidance...thank you in advance!

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I received "Defendent's Settlement Conference Statement". It is required to be submitted 5 days before the mandatory settlement conference. The conference is on 3/26/12.

***Please help me answer this correctly and also with advice on how to handle this conference.***

Here are the questions (paraphrased) that I need help on.

I) Nature of Case (brief statement of the nature of the case and primary issues...)

II) Previous Settlement Attempts (explain)

III) Statement of Facts1) Do you dispute any portion of the debt alleged in the complaint? If yes, check one:

* Account has been paid in full (

* The amount alleged on the complaint is not the amount I owe. The correct amount owed is $ ___

* This is not my account (explain)

* Other (explain)

* or NO. I admit that I owe the debt alleged in the complaint and wish to be placed on a payment plan (yeah right!!)

2) If you agree that you owe any portion of the debt alleged in the complaint, you must complete the following in addition to the attached Confidential Income and Expense Worksheet.

a) I am able to make the following lump sum payment $___

B) I can make payments in the amount of...

c) The following is my proposed payment plan...

If you would like to be placed on a payment plan, you must complete the income and expense worksheet.

It looks like I'll only need to answer number 1 and ignore the income and expense worksheet since I DON'T want a payment plan.

Do I answer this is not my account or other? PLEASE HELP!

By the way, I never got a response to my 2 BOP requests. What do I do if they don't respond?

Edited by Meli
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Sorry to bump this...I tried to search before posting but did not find anything.

I need help answering questions prior to my mandatory settlement conference in 3 weeks.

Thank you in advance!

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