ASTMedic

Summons from Midland Funding, where to start.

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See if your court rules mention anything about sending a type of reminder letter to the opposing attorney stating that you haven't received their responses to your requests. Some courts prefer you do so before a motion to compel. It shows you've tried to avoid taking up the court's time with a motion.

As Legal stated, you don't want them to have any evidence against you. However, if they haven't responded to discovery by the date of a court hearing, the judge could simply give them more time to respond to respond to your requests. If the rules state that you should send a reminder letter, and you still don't get a response, the judge might decide to not give them more time.

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Ya I wasn't really thinking of looking for more stuff to help them win their case. I am more asking how to get my ducks in a row and start getting paperwork ready for my next step. Sorry if I'm sounding a little eager, just the way I've become over the years with my job. I always try to stay ahead of the game and don't shy away from a challange.

The responses have to be in the mail to me by next Tues. (35 days) and I have my CMC on May 7th. Do I send them RFA and ROGS if they don't answer my POD? I'm asking cus I want to understand the tactics behind all this. I think that is the part I find the most fun in all of this. I can see why Coltfan loves it so much.

Oh and BV80 I'm going to be doing a meet and confer letter if they don't respond.

Edited by ASTMedic

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Ya I wasn't really thinking of looking for more stuff to help them win their case. I am more asking how to get my ducks in a row and start getting paperwork ready for my next step. Sorry if I'm sounding a little eager, just the way I've become over the years with my job. I always try to stay ahead of the game and don't shy away from a challange.

The responses have to be in the mail to me by next Tues. (35 days) and I have my CMC on May 7th. Do I send them RFA and ROGS if they don't answer my POD? I'm asking cus I want to understand the tactics behind all this. I think that is the part I find the most fun in all of this. I can see why Coltfan loves it so much.

Oh and BV80 I'm going to be doing a meet and confer letter if they don't respond.

I know nothing about CA law and rules, but I would send RFAs and Rogs after receiving documents. That way you can tailor your requests based upon the documents they sent you. However, if they don't ever send any docs, it would be up to you if you felt the need to send further discovery requests.

Search Calawyer's and Seadragon's posts regarding admissions and rogs.

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Sounds good. Wasn't sure if I could/should send RFA about the docs if they don't produce them.

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So I got Midlands copy of the case management statement. Most of it seems very standard. The complaint is reiterated, no arbitration, etc. However I find it funny that under the section for discovery they list RFA, POD, form ROGS and special ROGS. Then below in the area for discovery issues they state "Plaintiff intends to file discovery motions if it does not receive responses to the discovery propounded above." It is signed and dated on April 12th.

Strange............... I have, in my hand as I write this, a CMRR showing that they received and signed for my response to all the above. Are they just this dumb or are they pulling something???

Also it says "Plaintiff has attempted to meet and confer with defendant but may or may not have been able to do so." Ummmmmmmm NO you haven't!!!! They still haven't responded to my discovery yet either.

Edited by ASTMedic

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So if they have not responded, then write the same thing in your case management statement... why not?

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So if they have not responded, then write the same thing in your case management statement... why not?

Talk to them when they check in for case management.

If they don't have a prepared motion for dismissal as they haven't supplied any evidence of the alleged debt and have nothing to prove their case. To save judicial resources a motion to dismiss would be in order, or in the alternative to preclude the giving of evidence.

Drop the bomb at the case management hearing. and make sure you have an order for the court to sign on that day.

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Talk to them when they check in for case management.

If they don't have a prepared motion for dismissal as they haven't supplied any evidence of the alleged debt and have nothing to prove their case. To save judicial resources a motion to dismiss would be in order, or in the alternative to preclude the giving of evidence.

Drop the bomb at the case management hearing. and make sure you have an order for the court to sign on that day.

Good idea. They do still have a chance to get the responses to my POD to me by Tues. So we'll see:cool:

So if they have not responded, then write the same thing in your case management statement... why not?

My response:

Defendant has responded to Plaintiffs Request for Admissions, Request for Production of Documents, and Interrogatories and has certificate on hand showing receipt of delivery to plaintiff. Defendant has served plaintiff with a request for documents showing proof of account statements, the assignment agreement and any account agreement. As of the date of this case management statement defendant has yet to receive a response.

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It shows how the defendant brings up discovery and other issues.

Hope it helps

4a. Complaint for alleged breach of Contract, alleged money Lent, alleged Indebtedness and alleged Account Stated.

4b. Plaintiff's have erroneously implied the defendants answer allegedly admits the statements in the complaint which is not true. Plaintiff's have not propounded sufficient answers to Defendants Bill of Particulars. Plaintiff's have no Standing in the court. Plaintiff's agent has not completed the substitute service ie have not mailed the copies of the complaint to defendant. Plaintiff's agent has violated the CC 1788 et. seq. Plaintiff's have no privity and there was never a "meeting of the minds" between Plaintiff and Defendant. Plaintiff's have not completed discovery. plaintiff's have made Hearsay statements in the complaint at issue. Plaintiff's prayers call for interest which would violate California Usury laws.

13. other box checked: improper service of process, lack of subject matter jurisdiction Status :Plaintiff's agent has not completed substitute service in spite of the process servers declaration

16. Request leave of court to file amended answer and cross-complaint, motion to exclude evidence and motion in limine and any other pretrial motions necessary to complete discovery.

17. Defendant discovery ongoing

couldn't post the PDF it was too big

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So they responded to my request for POD. Nothing like a day late and a dollar short. The 30+5 due date was Fri and that's when they put it together and dropped it in the mail. Isn't the response supposed to be in my hand by the 35th day?? What the crap!!! Oh well my management statement is in stating they didn't meet the deadline.

So they objected to all 3 requests I listed in my POD stating they were all overbroad. Can they object if they don't meet the deadline??

They included the usual even thought they objected. A copy of the card rules. Approx a year of card statements from '08-09. A bill of sale and data sheet and letters they sent to different addresses I've lived at (all but 1 while I wasn't living there) saying they bought the debt.

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You should subpoena both signers on the bill of sale to appear - or depose them...that should make life a bit difficult.

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Can I attack a bill of sale that has no info linking it to an account? That could be from any account chase owned.

I'd still like to hammer the fact that they objected to my POD request. Seems to me like a MTC is in order but I just don't know enough about this. I'm going to have to talk to calawyer more about this when he gets back from his trip.

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Yes - absolutely...how can that bill of sale identify your specific account?

File a motion to preclude it.

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Woohoo!!!!!!! I can be taught!

They claim that that bill of sale backs up the statements and the list of my info that they included. How can they try to use a doc as evidence that has sections blacked out? Who knows what was under those. So if I pull that card out of their house that should, if I'm understanding the business records exemption codes, make the statements hearsay. Correct?

Also with them objecting to all my POD what does that allow them to do down the line? Does it allow them to come up with "evidence" as they need to.

Edited by ASTMedic

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They are hearsay if they cannot get anyone from the OC to authenticate them. If that is the case, then move to preclude them too.

If you can get those precluded, you've taken 2 legs of the case from under them.

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What's the last leg?

They have nothing signed by me yet they will claim I didn't dispute statements. The bill of sale that doesn't say anything about my acct and a list of my info that has no Chase logos or anything else saying it's tied to the bill of sale or was made by Chase. A generic Chase card agreement with nothing linking it to me.

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Well the last leg is account stated...you have to defeat that and attack their standing to sue.

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How do they have account standing with an account they can't prove they own? If I knock the bill of sale and then statements how do they have a case?? If you can't prove you own the account then where is your standing to sue??

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Well there's 2 parts...

Account stated means that they can show there were activities that create a contract - ex. you paid monthly...this is where you object to the statements - especially if they cannot be authenticated.

Standing to sue is different - it just means that they rightfully own the account. If you get the bill of sale precluded, then their standing disappears.

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A JDB should never prevail on an Account Stated Cause of Action. Here's some info that might help.

Under California law "[a]n account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another." Gleason v. Klamer, 103 Cal. App. 3d 782, 786-87 (1980); see generally 1 B.E. Witkin, Summary of California Law, Contracts, §917 (9th ed.). An essential element of an account stated is that both parties have assented to its terms. Restatement (Second) of Contracts §282. If there is no evidence that both parties agreed to a stated sum, the document is not an account stated. See Zinn v. Fred R. Bright Co. Inc., 271 Cal. App. 2d 597, 600 (1969) (noting a requisite element of an account stated is "an agreement between the parties, express or implied, on the amount due from the debtor to the creditor"). This is particularly true where statements are routinely sent as part of a continuing business relationship between the parties. See American Fruit Growers, Inc. v. Jackson, 203 Cal. 748, 751 (1928).

Generally, an account stated is viewed as a new contract and forecloses further dispute as to the items which comprise the account stated. See Gleason v. Klamer, 103 Cal. App. 3d at 787. Since an account stated constitutes a new contract that supersedes and extinguishes the original obligation, mutual assent is an essential element. Id. at 786-787. However, the parties to an account stated are not bound as to matters that were not contemplated, even though those matters existed when the account was stated. See California Milling Corp. v. White, 229 Cal. App. 2d 469, 478-79 (1964). To further complicate the issue, there may be a partial settlement and account stated as to only some transactions between the parties. Id. at 477.

Here's some stuff from Florida, but the basics still apply:

“Mere failure to object to an account sent by mail to one who has had no dealings with sender does not give rise to presumption of acquiescence of debt.”

C. & H. Contractors, Inc. v. McKee, 177 So.2d 851 (Fla. App. 2 Dist. 1965)

“Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”

Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

“Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998)

“”Account stated” is agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.”

Nants v. F.D.I.C., 864 F.Supp. 1211 (S.D.Fla. 1994)

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”

Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970)

“An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.”

Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

“Basic premise of an account stated action, which presupposes some indebtedness, is that the statement fixing the various sums that constitute the debt is correct and not the existence of the debt itself.”

Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

In summary, you never had transactions with the JDB, there was never an agreement between you and the JDB as to the balance owed, and you never made a promise to pay them.

Good luck,

DH

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