ASTMedic

Summons from Midland Funding, where to start.

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:)++LOVE this site thus far. You are all giving amazing advice and I'd like to thank everyone in advance for their advice. At the bottom are my questions.

Today I was served with a summons for a suit by Midland

1. Who is the named plaintiff in the suit?

Midland Funding LLC

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

David B Snyder and Stelios B Harris

3. How much are you being sued for?

~4K

4. Who is the original creditor? (if not the Plaintiff)

Chase Card Services

5. How do you know you are being sued? (You were served, right?)

Served with summons

6. How were you served? (Mail, In person, Notice on door)

In person today

7. Was the service legal as required by your state?

Yes (as far as I know)

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

They may have tried to contact me but I can't swear to it.

(I can't remember)/B]

9. What state and county do you live in?

California

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

Approx 3-3.5 years

11. What is the SOL on the debt?

I think 4 years per California law.

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).

Served, I'm going to prep my answer with the advice I get here.

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.

No

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?

30 days from today per my summons

Complaints for:

1) Accounts stated

Nothing attached

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

No exhibits attached. Only see the XXXXXX out Chase account number and amount owed listed in the suit. No attached papers other than Reduced Fees Filing, Declaration of Venue and Legal Facts pamphlet

My questions are:

1) I saw something on here by legaleagle about Chase having a SOL of 3yrs, is that an internal SOL?? They are allowed 4yrs per Cali law right?

2) So I'm going to file my answer and fight this. Midland is not the original CA and I don't agree that these guys are trying to make a buck off us. So to start should I file a general denial or break it down??

Edited by ASTMedic

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Start by reading your court's Rules of Civil Procedure. They'll have the information needed to answer the complaint. Also, read posts from CAlawyer and Seadragon. Both of those posters are from CA. They're full of valuable information.

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Chase invokes Delaware law which has a 3 yr SOL. To compute the SOL, take the day the last known payment was due, the SOL starts the next day if payment was not made as I understand. You must be able to prove this date. You can argue against them using CA SOL. If they were too stupid to file in time, too bad for them. I'm sure there are other CA laws that they may not like if you invoke them.

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It looks like the last payment was 5/2009 so they got it in just under the deadline (darn). So now on with filing my answer to the court.

I've been reading every post I can and I just bought Win Your Law Suit to read. Is it a better option to file the general denial form to keep from tripping myself up as much as possible?? At this point I don't want to hand them any ammo. Advice???

Edited by ASTMedic

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ASTMedic,

I just beat Midland. File a General Denial. See Post #4 From Calawyer in the link: http://www.creditinfocenter.com/forums/there-lawyer-house/310167-being-sued-midland-funding-ca.html

I also noticed that the complaint is only based on "Account Stated", is this correct? If so, then requesting a Bill of Particulars is not appropriate. If the complaint alleges other causes: Breach of Contract, Open Book then you can request for a Bill of Particulars. Otherwise, your next step after you submit your answer is start requesting documents: CC agreement in its entirety (with full disclosures - this should have the pre-printed date when the alleged acct was open, if they give you anything other than that - irrelevant), cc statements from initial opening to charge-off date, Bill of Sale/Assignment.

Hope this helps..

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So to start should I file a general denial or break it down??

Is the complaint verified? In other words, is there a statement by someone saying that they have reviewed the allegations of the complaint and know that they are true?

If not, you can file a general denial. You would prefer to use a general denial because it is much easier and you do not have to specifically admit or deny any of the allegations in the complaint. A general denial, denies all of the allegations generally.

Helpme is correct about discovery. Serve either a BOP or a document demand as soon as you answer the complaint.

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I also noticed that the complaint is only based on "Account Stated", is this correct? If so, then requesting a Bill of Particulars is not appropriate.

Yes the only complaint listed is account stated. What does this mean? Does this mean they now own the account and are claiming they are the creditor? Why no BOP? (just so I fully understand everything)

Also what were you talking about when you said they reported to the credit agency in your thread? I pulled my credit and saw they reported something already.

Is the complaint verified? In other words, is there a statement by someone saying that they have reviewed the allegations of the complaint and know that they are true?

I don't see anything that anyone has signed as being affidavit of review of the allegations. I see the signature of the lawyer that filed the complaint at the end of the complaint but nothing stating "under the penalty of perjury". A signature by the same on the civil case cover sheet and a signature by the same on the reduced filing form. Also a signature by the lawyer on the venue declaration.

Edited by ASTMedic

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Yes the only complaint listed is account stated. What does this mean? Does this mean they now own the account and are claiming they are the creditor? Why no BOP? (just so I fully understand everything)

Based on the Civil Procedure Before Trial Vol 2 - "Actions on Account Stated" - California courts have taken the position that a demand for a BOP is improper in an action on an account stated ( the agreed settlement of an account between parties). They will cite Ahlbin v Crescent Commercial Corp. An Action on an account stated is based not on the original items but on the final balance established by the parties mutual consent, making the BOP inappropriate. Read Meli's post on how Midland responded to her BOP request. I posted on her thread as well if you want more info.

Also what were you talking about when you said they reported to the credit agency in your thread? I pulled my credit and saw they reported something already.

When I got served, I didn't know who these people were. So I ran a credit report. Midland had ran a credit report in August, The suit was dated Sept and I was served in Oct. This was the first communication I ever received from them. This is a FDCPA and Rosenthal (California) violation.

I don't see anything that anyone has signed as being affidavit of review of the allegations. I see the signature of the lawyer that filed the complaint at the end of the complaint but nothing stating "under the penalty of perjury". A signature by the same on the civil case cover sheet and a signature by the same on the reduced filing form. Also a signature by the lawyer on the venue declaration.

Then use the General Denial form. Look at DTR077's initial thread. I think I posted something explaining exactly how many copies how to answer etc.

Hope this helps to get you started. But answer the complaint first. Get that going. If you need help with Doc Request just let me know.

helpme

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Maybe demurrer to the complaint, because they have failed to state a cause of action.

They may also be default fishing with this. If you sue for 5 violations then you change this. If they dismiss now they will be out SOL(both ways)

and try to get a fee waiver

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Hey ASTmedic -

I have the exact same suit as you do with the exact same wording from Midland, but in New York. The next step that they'll take is to provide a bank statement from Chase showing when you last made a payment. So be prepared for that in court.

Apparently, they seem to have the statements, but I don't think statements are sufficient evidence. My statement did not have anything itemized, just a blank bill with Chase's logo that I owe $2,800.

I responded to my suit and denied everything.

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When I got served, I didn't know who these people were. So I ran a credit report. Midland had ran a credit report in August, The suit was dated Sept and I was served in Oct. This was the first communication I ever received from them. This is a FDCPA and Rosenthal (California) violation.

So I looked at my credit report. They ran me back in Oct. Is this a violation also?? Does your situation count as a violation of first contact???

Maybe demurrer to the complaint, because they have failed to state a cause of action.

They did list a cause of action as account stated. They list the following under that:

"With in the last 4 years, Defendant became indebted to the plaintiff in the amount of $xxxx.xx on an account stated in writing by and between Plaintiff and Defendant in which it was agreed that the Defendant was indebted to the Plaintiff."

"Plaintiff has made demand on Defendant for repayment of the account stated but Defendant has failed and refused to pay the balance due."

"As of the date of this complaint, there is due and owing the unpaid the sum of $xxxx.xx and additional interest on that amount of $xxx.xx. Interest has accrued and will continue to accrue on the unpaid sum of $xxxx.xx at the rate of 10% per annum starting on June 30, 2011.

"
WHEREFORE
, Plaintiff prays for judgment against Defendants as follows:

On the First Cause of Action

1. For the unpaid balance of $xxxx.xx

2. Interest due on $xxxx.xx at the rate of 10% from June 30, 2011

3. Cost of suit and

4. Such other relief as the Court may deem just and proper.

I still don't see how any court could find that I own them anything on an account between us when I never signed anything between us. Also how can it be an account in writing when using accounts stated cause of action are (as I understand it) used when no contract can be produced by JDB???

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Also I will be filing a general denial form this week. A copy to the court, a copy to them CMRRR, and a copy for my files (all that sound right?). After that how do I go about requesting the docs that they have (or don't have)?

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Stated in writing means they sent you a billing statement. Account stated has several elements: prior transactions between the parties, billing statements sent without protest by you, an agreement between the parties resulted thereafter in which the parties agreed to the balance stated, and a promise implied or stated, to pay the balance. Implied means based on previous actions by you, specifically that you made payments and never questioned the balance.

The JDB assumes all the rights of the OC, so all this crap still applies. There is no need for a separate agreement between you and the jdb. You can challenge these elements; they have to prove them. The best way to beat a jdb is to attack their ownership of the account, they rarely have all the paperwork identifying your specific account.

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You will need to research within your state's case law to determine the exact legal requirement for account stated. The basics are:

1. Existence of an account or business relationship.

2. Agreement to pay (Cardmember agreement)

3. Mutually agreed account balance (final statement of default, not contested by you)

They need to prove all elements to have a claim under account stated. To defeat it, you must be able to impeach their evidence that it is inadmissable. The best point of attack is heresay and inclusion as heresay under the business records exception. Read up on this board about heresay and how to beat it.

Lack of Standing trumps account stated as well. Without standing they are dead in the water. They have to prove that they have the right to sue you. Again, same startegy is employed, which is to attack the admissability of their documents and witnesses as heresay or irrelevant.

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Fight their claim of ownership of the account. It doesn't matter if they can provide a "bill of sale" that shows they purchased some accounts from the OC. It doesn't matter if they can provide copies of cc statements. It doesn't matter if they have an employee who claims to know everything about everyone. Unless they can prove they purchased your specific account (not just a portfolio of accounts), they haven't proven you owe them a penny.

Your court's Rules of Civil Procedure will tell you how to make discovery requests. In addition, search the boards for CAlawyer's and SeaDragon's posts. They are from your state, and their information is invaluable.

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Also, use case law from any state you can find if it helps your case. Some states have no case law for account stated, or very little. These are national banks that conduct business all over the country. Therefore, case law from all over the country is applicable. I'd rather have 20 good decisions from other states to show a judge than 1 or 2 debatable ones. The more you can give a judge, the better. that reduces the chance of appeal. Judges like to rule on precedent. Almost none of them like to break new ground. Credit card case law in general is plentiful. Use Google Scholar, advanced search.

Edited by legaleagle
typo

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So I'm filing my answer on Thurs (its my first day off or it would have been sooner).

I would search to find an answer to my question but for some reason the search feature won't work for the forum on my phone (I'm on shift till 2200 tonight so stuck using the phone). I need to list an afrimative defense on my general denial correct? From what I'm reading lack of standing seems to be my most general and vague defense. I'm trying to lump as much of this back on the JDB as I can. I also saw the new ruling from the MI supreme court about lack of standing and JDB.

Input on this please???? Thanks

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Special defenses shift the burden of proof to you, not them. Opinions vary, but most of us recommend not using any unless the SOL has expired. Standing is for them to prove, not for you to disprove. If they know what your strategy is going to be, it gives them time to prepare for it. The MO decision will be helpful, but you want to spring it on them at trial when they can't do anything about it.

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Or can I list this?

Defendant reserves the right to raise affirmative defenses as they become known to Defendant during discovery

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I am by no means an expert on CA law, but generally speaking, you can state that you reserve the right to assert defenses in the future. Ask Seadragon or CAlawyer, there may be some intricacy in the code that requires a certain kind of response. I think most courts will allow you to keep your options open.

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Or can I list this?

Defendant reserves the right to raise affirmative defenses as they become known to Defendant during discovery

You don't need to say this.

To amend your answer to assert additional affirmative defenses, you must get permission from the court. But permission is liberally granted, especially if you seek it promptly after learning a new fact.

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Ok, good info. So should I list lack of standing or do I have list anything? Am I able to just leave it blank and thus put the burden of proof back on them? I have no paperwork to prove or disprove anything I might claim as a defense. After reading the posts on this forum I now understand that my case is about picking apart their paperwork chain and thus showing they lack standing.

Also when they ran my credit in Oct did the violate anything? I'm still confused on this area.

Also sorry for what must seem to be very simple questions. This is my first exposure to court and suits.

Edited by ASTMedic

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Since you are in CA, the general denial is sufficient...also, if you want to use an affirmative defense, I'd use lack of standing to sue (CCP 430).

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