ASTMedic

Summons from Midland Funding, where to start.

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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).

Thank you for the advice. I am going to file general denial. I guess my question is more SHOULD I list anything if I don't have to? I'd rather go that route and then make them drag out everything in discovery and hopefully start picking it apart to attack standing then (see I learned something from this place).

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File the general denial, then send them a bill of particulars.

A BOP only gives them 10 days to summarize all the transactions on an account, and if they fail to do so, you can preclude their "evidence."

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File the general denial, then send them a bill of particulars.

A BOP only gives them 10 days to summarize all the transactions on an account, and if they fail to do so, you can preclude their "evidence."

Right, but do I need to list anything in my afrimative defense on my general denial?? Can/should it be blank?

Also others are saying no BOP due to the only complaint listed is accout stated. I just have to make my discovery requests.

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Right, but do I need to list anything in my afrimative defense on my general denial?? Can/should it be blank?

Also others are saying no BOP due to the only complaint listed is accout stated. I just have to make my discovery requests.

I would assert lack of standing if it is a JDB and SOL if it is at least possible that the claim is barred.

If the ONLY claim is account stated a BOP won't work. If there are other claims, it should be served.

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Ok so lack of standing it is. They're just in under the 3yr mark for SOL that Chase used so that's a no go.

I'll get back about filing my discovery after I get my answer filed. Thanks

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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

Unclean hands is a good one.

Lack of Standing

and any other one that fits your situation.

Failure to state a claim for which relief can be granted

In pari delicto

That is about it.

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I'm thinking lack of standing gives me a bunch of latitude once I see what they come up with in discovery.

At this point I don't see where unclean hands would apply (not that doesn't just don't see it as of now).

Edited by ASTMedic

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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???

Be careful they may have reaged the account to file the suit. I would check"other sources available to you" if you have access to them for the genuine date of default and not trust the CR's.

They have to comply with some discovery for account stated.

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I'm thinking lack of standing gives me a bunch of latitude once I see what they come up with in discovery.

I would also attack on account stated as well. Why not? They have to prove that an account existed, that an amount owed was agreed upon and a promise to pay.

“The existence of a valid obligation is necessary as the basis of an account stated.” Law of Contracts, Vol. 4, section 2523, William Herbert Page

“In order that an account may be stated, it is necessary in the first instance that there should be a presentation of what the law recognizes as an account.” Law of Contracts, Vol. 4, section 2518, William Herbert Page

A copy of a statement, without authentication blows away the first element of account stated, and without that, they have no basis for their claim.

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I would check"other sources available to you" if you have access to them for the genuine date of default and not trust the CR's.

Can you give me some more info on "other sources"

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ASTmedic,

Whether or not to use an affirmative defense is a hot topic here at this link in the stickies

http://www.creditinfocenter.com/forums/there-lawyer-house/310699-lets-have-discussion-affirmative-defenses.html

It is a good long read. I think that coltfan makes a really strong argument against using these affirmative defenses for the most part. I did not list any in my answers....still going through these 2 lawsuits so I can's say that this method is proven by fire yet....

I did however add the "Defendant reserves the right to add affirmative defenses at a later date as they become known throughout the course of litigation"

As for "other sources" you can check banking records, did you even make payments? How did you make payments? Can you check into bank records?

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Ya I looked at that whole thread (had a very slow day at work yesterday). That was why I've been pressing the issue. I like the "add afrimative defenses later" route and I think that's what I'm going with. Gives me the most flexibility since the only proof they showed me was a last 4 acct number in cause of action section. Like stated in the thread ultimately I'll be attacking standing most likely.

As for the SOL and other sources I'd have to do some real digging to find the last payment date. It's been about 3.5yrs since I made a payment on it and that was to Chase. I've had no contact with Midland at all. Not even an answered phone call. If I don't know the number I let it go to voicemail.

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Be careful they may have reaged the account to file the suit.

So true- a JDB used their acquisition date as a proxy for the default date and filed suit on it...that was the basis for a FDCPA and FCRA counterclaim.

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I'll have to start doing some digging and see. That's going to be some serious digging though.

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Ya I looked at that whole thread (had a very slow day at work yesterday). That was why I've been pressing the issue. I like the "add afrimative defenses later" route and I think that's what I'm going with. Gives me the most flexibility since the only proof they showed me was a last 4 acct number in cause of action section. Like stated in the thread ultimately I'll be attacking standing most likely.

As for the SOL and other sources I'd have to do some real digging to find the last payment date. It's been about 3.5yrs since I made a payment on it and that was to Chase. I've had no contact with Midland at all. Not even an answered phone call. If I don't know the number I let it go to voicemail.

Hey ASTMedic, one of the documents Midland provided me during BOP process was a redacted database file supposedly a transfer file from OC to JDB. Part of the information in that data file was Date of Last Payment Made and Date of Chargeoff. This file came along with their proof of ownership, but since you can't request BOP wait to request Proof of Onwership/Assignment during your discovery since you are stating the following in your General Denial: "Defendant reserves the right to add affirmative defenses at a later date as they become known throughout the course of litigation". Just a thought and I'm not suggesting the info fr Midland was correct. I did still have to research thru my records to ensure the info was correct because the President of Encore stated in a forum that they don't need to verify info coming fr OC because it's assumed the info the OC has is correct. Well that wasn't true in my case, some of the info coming fr OC wasn't correct and I was also going to attack fr that perspective.

Edited by helpme

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Make it an item when you do a request for production....

Identify the date in which the Defendant's account was purportedly acquired.

///

In my case, they objected, until I filed a motion to compel...

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Make it an item when you do a request for production....

Identify the date in which the Defendant's account was purportedly acquired.

///

In my case, they objected, until I filed a motion to compel...

That would be an interrogatory. If you want documents, ask for all documents that reflect or refer to the date upon which plaintiff acquired the account that is the subject matter of this litigation.

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and try to get a fee waiver

Looks like I don't qualify:?

Also I'm going with "Defendant reserves the right to add affirmative defenses at a later date as they become known throughout the course of litigation" as my affirmative defense. Any reason that would be detrimental?

Edited by ASTMedic

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General Denial Form:

1. Defendant denies every allegations made by the Plaintiff in the Complaint.

2. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later time.

that's it short and simple

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General Denial is filed and sent off to Midland with CMRRR. I filed it with both the items listed in the last post. Court is set for 60 days out, Monday May 7. Is this just a preliminary hearing?

So now on with business. What is my next step? Starting discovery?

Edited by ASTMedic

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So I'm working on understanding how the discovery process applies to accounts stated, since I'm unable to file a BOP I have to file a request for production correct? I've been looking at the idea of only asking for what they plan to introduce at trial as evidence to keep from bringing key docs to their attention by asking for specific items.

Edited by ASTMedic

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In my opinion account stated is a cheap twisting of the law in order for the Plaintiff not to have to produce a signed contract in order to prove their case.

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An account stated has several 'legs' needed to be upheld. Remove any one of those items and account stated fails. Here is a pdf from infinitecredit.com Referencing TowerRat's take on it. Also, another weblink with a discussion.

Hope this helps.

Dealing with Debt Collectors, New Defense, Need feedback

Oops, pdf is too big, here is a link to the article:

TowerRat's Accounts stated

Very interesting reading.

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Is there anywhere I could look to get a better understanding of how to write my request for production. I'm new to the lingo. I know I need to list things like

"Plaintiff hereby requests that defendants respond to this request for production and produce all writings which are responsive to any of the following numbered requests within 30 days of the date of service of this request, in accordance with the definitions and instructions below. This request is made pursuant to Section 2031 of the California Code of Civil Procedure."

I'd like to keep this request as to the point as I stated earlier. I don't want to "tell" them what they need to present to make their case. Will the below be enough for a first request?

1) Produce all documents that you plan to present in the course of your case as evidence.

2) In the event that an unforeseen document will be introduced you are to amend your answer to include this document prior to trial. (at some point they can't just add more things though, right?)

I've got 60 days till my first court date so I need to get my stuff together.

Edited by ASTMedic

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Is there anywhere I could look to get a better understanding of how to write my request for production. I'm new to the lingo. I know I need to list things like

"Plaintiff hereby requests that defendants respond to this request for production and produce all writings which are responsive to any of the following numbered requests within 30 days of the date of service of this request, in accordance with the definitions and instructions below. This request is made pursuant to Section 2031 of the California Code of Civil Procedure."

I'd like to keep this request as to the point as I stated earlier. I don't want to "tell" them what they need to present to make their case. Will the below be enough for a first request?

1) Produce all documents that you plan to present in the course of your case as evidence.

2) In the event that an unforeseen document will be introduced you are to amend your answer to include this document prior to trial. (at some point they can't just add more things though, right?)

I've got 60 days till my first court date so I need to get my stuff together.

Take another look at the complaint. Plaintiffs rarely allege only one cause of action. See if you can do a BOP.

You can't ask for trial exhibits in a document request. You can ask for them later in a CCP 96 demand. If you can't do a BOP, I would serve a document demand seeking all account staterments; the assignment agreement and any contract between you and the OC.

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