ASTMedic

Summons from Midland Funding, where to start.

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Then why do so we hear of so many that try to argue that fact and fail? Poor case law selection?

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They're just churning out paperwork figuring on default judgments in the majority of the cases. They are generally ill-prepared to actually litigate a contested case.

Regards,

DH

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we can look at the people who have used my trial brief to win and the ones who have lost. the only common denominator is the judges.

because bias is alive and well in human existance.

and because there is no specific deliniated authority for credit card cases.

If you lose you should appeal that way case law will develope

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Got my CMC coming up on Monday. Made a binder with all the docs for the case so far. Got a few other things people are working on for later too. Any tips going into CMC??

Also if anyone can point me to a good example of a M&C for POD due to objections to all my requests I could really use the help. Thanks

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You're probably way over prepared. If this is the first conference, the only questions are likely to be "Have all defendants been served?" and "If so, has an Answer been filed?" Then schedule the next conference.

In fact, are you even sure this conference will be held? Check the notice you were sent. On mine, it said that the initial conference would be automatically redesignated for Case Management if an Answer had been filed, and that's what happened.

Good luck.

DH

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You're probably way over prepared. If this is the first conference, the only questions are likely to be "Have all defendants been served?" and "If so, has an Answer been filed?" Then schedule the next conference.

In fact, are you even sure this conference will be held? Check the notice you were sent. On mine, it said that the initial conference would be automatically redesignated for Case Management if an Answer had been filed, and that's what happened.

Good luck.

DH

This was scheduled the day I filed my answer some 2 months ago. The clerk pulled up the calender and set it right there in front of me. CMC statements have been filed by both sides and they didn't put anything about appearing by phone so I guess they (i.e. rent a lawyer) will be there. Doubt anyone from Midland will fly from SoCal to Norcal for a CMC.

And over prepared is RIGHT where I want to be.xboxingx Working on a meet and confer so I can file a MTC for some better responses to my RFPOD.

Edited by ASTMedic

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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??

You are correct. Not sure what 1stStep means.

If plaintiff does not have standing, they can't pursue ANY claim in court. Period.

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You are correct. Not sure what 1stStep means.

If plaintiff does not have standing, they can't pursue ANY claim in court. Period.

Thanks for clearing that up....... and thanks for all your help on the meet and confer. Its going out today

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Then why do so we hear of so many that try to argue that fact and fail? Poor case law selection?

because they do not specifically challenge the statement that the defendant agreed the balance was correct. and that they do not object when the billing statements are given during discovery.

if you do not answer then you implicitly agree the statement is correct, if you do not address the issue ie a declaration that no account stated exists between the parties then the court has to operate as if you conceded the arguement.

That is how they get away with it.

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because they do not specifically challenge the statement that the defendant agreed the balance was correct. and that they do not object when the billing statements are given during discovery.

if you do not answer then you implicitly agree the statement is correct, if you do not address the issue ie a declaration that no account stated exists between the parties then the court has to operate as if you conceded the arguement.

That is how they get away with it.

But as husband points out, when it's transferred to the JDB if they want to call it an account stated then it's a new contract since the old contract is ended and a new one started. That is if I understand the case law he referenced. So how can they claim acct stated when no transactions were between me and Midland?

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Got my CMC coming up on Monday. Made a binder with all the docs for the case so far. Got a few other things people are working on for later too. Any tips going into CMC??

Also if anyone can point me to a good example of a M&C for POD due to objections to all my requests I could really use the help. Thanks

If they say they have to do discovery say in open court"after diligent search and reasonable inquiry defendant does not have responsive documents in his possesion, custody, or control."

then say that if plaintiff has no responsive documents to support their case they cannot use other peoples documents to do that and since they did not have the documents in their possesion prior to the start of litigation they have engaged in a frivolous fishing expedition attempting to get a default judgement without admiisible evidence to support their case.

defendant moves to dismiss.

that aught to brighten their day, and if the rent a lawyer says he is not prepared request the court mandate the appearance of the attorney of record for Meeting and conferring at all hearings.

set trial 45 days out or a sooner time if the court will allow.

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Your husband is wrong. The JDB assumes all rights of the original creditor, including account stated. This is a theory of litigation, you need to research it.

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Your husband is wrong. The JDB assumes all rights of the original creditor, including account stated. This is a theory of litigation, you need to research it.

Sorry my error. Not my husband, look at Debtorshusband post (#100) a page or so back. He points out why no JDB should win with acct stated. That's why I'm lost. If the case law he posted is true how can they win on acct stated???

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He's wrong too. I can give you a thousand cases where creditors won on account stated, icluding JDBs, they assume all the same rights as the OC.

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He's wrong too. I can give you a thousand cases where creditors won on account stated, icluding JDBs, they assume all the same rights as the OC.

That's what I thought and was why I was questioning it. Thanks

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if plaintiff has no responsive documents to support their case they cannot use other peoples documents to do that and since they did not have the documents in their possession prior to the start of litigation they have engaged in a frivolous fishing expedition attempting to get a default judgement without admissible evidence to support their case.

defendant moves to dismiss.

If they can't use other people's docs then the statements and the card member agreement are junk in court right?

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They could use them if they had them at the proper time. I think Sea's take is that these creeps sue first, hope for a judgment, and when the consumer fights, then they go out and try to round up enough evidence to win. This would never work in a criminal indictment, it shouldn't be allowed in civil cases either.

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They could use them if they had them at the proper time. I think Sea's take is that these creeps sue first, hope for a judgment, and when the consumer fights, then they go out and try to round up enough evidence to win. This would never work in a criminal indictment, it shouldn't be allowed in civil cases either.

I think it's fair to say that's what they've don't with me. Total junk up to this point. A BS bill of sale with nothing referencing me (or any other acct for that matter), my acct info on another sheet with nothing tying it to the BOS, a year of statements and some letters they say they sent me.

I'm going to bring up the points that Sea made about lack of proof prior to filing. Got my Meet and Confer off by fax on Fri and CMRRR yesterday. Bet they don't respond.

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for account stated:

H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp., 99 Cal. App. 3d 711 (Cal. App. 5th Dist. 1979) and:

"An 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. When the account is assented to, ' "it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties. . . ." Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.' " (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787 [163 Cal.Rptr. 483], internal citations omitted.)

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for account stated:

H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp., 99 Cal. App. 3d 711 (Cal. App. 5th Dist. 1979) and:

"An 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. When the account is assented to, ' "it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties. . . ." Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.' " (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787 [163 Cal.Rptr. 483], internal citations omitted.)

I'm lost in the legal jargon but I somewhat get it.

To me that sounds like what makes the contract in the first place is the transactions. Is it just that the contract is formed by those transactions but not bound by them? Does the JDB gain the rights of the contract just like if a written contract is sold?

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Ok the CMC wasn't too bad. I was pooping bricks since I'm the kind for guy who almost never gets tickets let alone has been to court. It was kinda fun sizing up the different lawyers in the hall trying to figure out who they hired (i.e. the lowest rent looking person there). After they opened up the courtroom and we went and sat down I thought I had the rent a lawyer figured out. When the case is called we walked up to the desks I see the most sad looking old man come walking up. I thought REALLY!!!!!! He looked like he had pulled his sport coat out of a bag in the bathroom and put it on.

So jackhole says "your honor discovery is on going", and I responded with "your honor there is no discovery remaining. I have done a search and found no documents as requested by the plaintiff". I then went on to explain how they had responded with crap to my RFPOD and that I have a meet and confer letter sent to the plaintiff. The judge says "well there seems to be some items in dispute. Hopefully this can be settled before trial" She asked if Sept was a good time for a court trial and I stated that I would like one sooner but Sept was fine. So she set a date in Sept and the rent-a-jackhole said he wanted a date in Oct. Rather than look petty I just went along with it. So Oct it is, now on with my meet and confer and what I'm sure will be a MTC.xdancex

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Ok the CMC wasn't too bad. I was pooping bricks since I'm the kind for guy who almost never gets tickets let alone has been to court. It was kinda fun sizing up the different lawyers in the hall trying to figure out who they hired (i.e. the lowest rent looking person there). After they opened up the courtroom and we went and sat down I thought I had the rent a lawyer figured out. When the case is called we walked up to the desks I see the most sad looking old man come walking up. I thought REALLY!!!!!! He looked like he had pulled his sport coat out of a bag in the bathroom and put it on.

So jackhole says "your honor discovery is on going", and I responded with "your honor there is no discovery remaining. I have done a search and found no documents as requested by the plaintiff". I then went on to explain how they had responded with crap to my RFPOD and that I have a meet and confer letter sent to the plaintiff. The judge says "well there seems to be some items in dispute. Hopefully this can be settled before trial" She asked if Sept was a good time for a court trial and I stated that I would like one sooner but Sept was fine. So she set a date in Sept and the rent-a-jackhole said he wanted a date in Oct. Rather than look petty I just went along with it. So Oct it is, now on with my meet and confer and what I'm sure will be a MTC.xdancex

Excellent.

You have now had your first Court appearance. THe next one will be that much easier.

Write the trial date down in your calendar and start calculating and calendaring dates (like sending out a CCP 96 Request).

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Are credit card statements hearsay if they are from chase and not Midland and Midland is using them as their own as evidence? Can you use another businesses records as yours? If not is there case law stating so?

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Only if they can bring someone from the OC to authenticate...if not, object since they cannot be authenticated.

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Thought so. Can they try and pull them back if they issued them as an exhibit in my RFPOD? For that matter can they try and take anything docs back that gave me as a response to my RFPOD? Just wanting to be sure that they can't try and offer up a different BOS than the one they gave me.

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