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Midland Funding: Making an Admission and still winning.


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Hello and thanks in advance for your responses.

I am currently being sued for around 1600 dollars by Midland Funding. Originally upon being served the complaint, I had done some research on this site and planned on denying everything and forcing them to prove their case completely.

I filed my answer to the complaint, along with my affirmative defenses, and was waiting for their demand for production of documents and their interrogatories to come in the mail, at which point I was going to deny having any such documents and make my own request for documents, such as a contract which I doubted that they would have.

Now, the thing is I want to be completely moral and honest. I really could not remember taking out an account at the date they said I did, and I thought the Capital One account they were referring to was way past CA's 4 year SOL. So, the same day I received their request for documents, I happened to be cleaning out some old paperwork, and found several documents bearing the same account number that I am being sued for.

One of these documents is a bill from June- Sept 2010 from the Original Creditor, Capital One. It states a balance very similar to the balance I am being sued for, and an identical account number. If you need more info about what is on this bill feel free to ask..

The next document is from March 2010 and is from the Law Office of Mitchell N. Kay. It states the same last 4 of the account number in question, a similar balance, and also that "as of this date we have not receive the payment that you had recently promised."

Also dated from March of 2010 is a letter from Capital One, bearing the same account number, and thanking me for agreeing to a payment plan, and that as a result they have lowered my interest rate to 0%

The final document is also from the Law Office of Mitchell N. Kay, dated May 11, 2010. This states the same last 4 of the account number in question, the same balance as their letter from March, and also that they "agree to accept my repayment plan of $25.00 per month." Apparently I had talked to someone from this law office, and made an arrangement to pay on a payment plan. I don't remember doing this. In fact, on the interrogatories that they sent me, I am asked to admit to actually making ONE payment of $25.00. This means that if they can prove I made this payment, the SOL is not going to be a valid defense, right? Can they prove I made this payment, since I cannot remember making it?

So, now that I am obligated, both legally and morally, to provide them with copies of these documents, my question is whether or not I can still win my case. Midland Funding has not proven that they are the rightful owner of this debt, right? If I challenge them to produce the contract and they cannot, but I admit to owning a Capital One account do I lose?

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But I admit to owning a Capital One account do I lose?

Heck no, before a case of mine started, I stood up and stipulated, on the official record with the Judge on the bench, I owed every dime alleged in the other sides complaint. I did not dispute one penny. Then I did just as you said, turned the trial into a single issue trial, standing.

I won in record time as the judge denied every piece of their garbage (i mean hearsay) they tried to admit under the business records exception to hearsay.

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Thank you for the response man.

So in the interrogatories, they are are asking me to admit to owning the account which it looks like I will go ahead and do.

Where I start challenging them then, would be, for example, in request for admission 9: They are also asking me to admit that "I do not dispute the ownership of the account by Plaintiff Midland Funding." That is exactly what I want to dispute right?

In Request for Admission 10, They are also asking me to admit the Notice of New Ownership and Pre-Legal attached hereto as Exhibit A is a true and correct copy of the letter I received from Plaintiff Midland Funding. I think I do remember receiving this...

However should I dispute Request for Admission 11, where they ask me to admit that I do not dispute the accuracy of the Notice of New Ownership and Pre-Legal attached hereto as Exhibit A that I received from Midland Funding.

Exhibit A looks like the Following:

6-29-2011

My name and address. MCM Account #

Original Creditor: Capital One

Current Balance

PRE-LEGAL NOTIFICATION

Dear John Doe,

Midland Credit Management, Inc has made several attempts to contact you regarding this account. This letter is to inform you that we are considering forwarding this account to an attorney.. BLAH BLAH set up a payment plan today etc etc.

What are the steps for challenging this as hearsay etc??

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This is what I would do- send Midland a Bill of Particulars. This gives them 10 days to itemize everything over the life of the account...their response will tell you what the have - probably no more than a couple of statements, a bill of sale that will not have your name or account number on it, an affidavit.

The affidavit is what you focus on as far as hearsay.

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Ok a couple of questions about that 1ststep...

Do I send this "bill of particulars" and await a response before I send my response to their interrogatories and their request for documents? I have 29 days to respond to those and counting, so I am thinking no...

Secondly, how does this "bill of particulars" differ from my own request for documents that I was planning on sending? Are we talking about the same thing?

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No. Request for production is a discovery thing. A bill of particulars is an amplification of thier complaint...basically, you're asking them to further state how they came up with the amount they are suing for.

The BOP is found in CCP 454.

Their response to the BOP will give you an idea of what their "evidence" is - and if it's deficient (can't itemize all the transactions), you can file a motion to have that "evidence" precluded - meaning it cannot be used at all.

As far as answering their discovery - deny everything as appropriate.

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You can't admit or deny, so you deny of course, their standing. You are not employed by Midland or the original creditor, you don't have access to all the records and you were not a party to the alleged sale of the account.

There is no way you can know who has standing.

Also, don't go just admitting everything under the sun right off the bat. Notice I said at trial is when I made the stipulation. I had them painted into a corner with discovery and they were not getting out of that corner. I had them nailed with admissions, their lack of production and other orders from the court.

I did my homework and properly laid the foundation for my trial. It sounds cocky, but oh well guess it is, but I had that case won before the judge ever took the bench. Any argument they would have made I had them nailed and the great thing is I had them nailed with their own discovery responses, but more importantely, their lack of responses and production. Once they did not disclose a witness from the original creditor and the judge's deadline for discovery passed, I was home free.

Also, I have learned (most from CALAWYER) the rules of procedure are a lot different in my state than in yours. Not saying that means anything bad, in fact, you have the BOP that from what I read is a huge weapon against a JDB. I don't have that in my state.

So make sure you explore all options and fight them the whole way. Then we you get to trial, if that really ever comes, it will not be who will win, but how bad you decide to beat the other side.

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However should I dispute Request for Admission 11, where they ask me to admit that I do not dispute the accuracy of the Notice of New Ownership and Pre-Legal attached hereto as Exhibit A that I received from Midland Funding.

You can admit it appears to be a notice of new ownership, if you want. However, you how in the heck would you know if the contents in the document are accurate, because they say so?

That is like me taking a copy of my college diploma and sending it to you, then asking you to admit you don't dispute the accuracy of the diploma. Looks like a diploma to you I'm sure, but how are you going to, 100%, be able to not dispute it's accuracy. You can't, you're not on staff at my college's record keeping department.

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