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Midland Funding about to file Motion to Compel: Did I drop the ball already?


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Hi everyone. This forum has gotten me this far and I would have been absolutely lost without it. My dad is being sued and I am basically the only chance he has so I'm handling this entire thing. It's 2:30 am here in California so hopefully my post is semi-coherent.

We are in California and Midland Funding is suing for a Bank of America account worth $9,000. They are suing for 1) Breach of Written Contract and 2) Account Stated. The summons was filed on 5/2011 and I filed the answer on 6/2011. They included no evidence or proof with their summons.

This is where I may have dropped the ball.

I heard nothing from Midland (and I did nothing myself) until 9/2011 when they sent me (us) a meet and confer letter saying that they had sent me discovery and they were giving me an additional 7 days to respond. Problem was I never got that discovery and I wasn't really sure what they were talking about (my dad also never saw it and we live in the same household). I put their meet and confer letter away and didn't deal with it which i think was a dumb mistake on my part. I think I should have written to them and asked them what the hell they were talking about and that I never received that discovery.

About a month later (10/2011) I sent them a Demand for Bill of Particulars. I heard nothing back so a month later (11/2011) I sent them a demand for Bill of Particulars and a Warning that I would ask the court to exclude evidence. For each filing I also filed a proof of service but I didn't get a mail confirmation or anything like that.

Again I got no response and I did nothing myself to deal with the case or follow up on the warning to exclude evidence (another mistake on my part, I think). So I hear nothing until this month when I get a letter saying they will be filing a Motion to Compel my response to their discovery that they say they sent on 8/2011. In the letter they include a copy of that discovery with all their interrogatories. They also included a Request for Inspection and Production of Documents (also dated 8/2011). Also included was the paper saying they were going to file the Motion To Compel in early March and that they want to impose sanctions on me for not responding.

By the way, they included a proof of service for the discovery they say they sent me on 8/2011 but I don't think they ever filed it with the court because it never showed up on the online case file. I also went to the court in person and looked at the case file and that proof of service was not there.

So that's where I am. I have less than 2 weeks before they file the Motion to Compel and I'm not sure how to proceed. Should I answer their discovery and file it ASAP? How can I explain that I didn't receive their discovery back in 8/2011 and the first time I saw it was earlier this month? Will the fact that I ignored the meet and confer letter come back to bite me?

Also, what should my next offensive step be? Send a request for discovery of my own since they never responded to my demands for a Bill or Particulars? Or should I go ahead and ask the court to exclude evidence like I had intended to do originally?

Any feedback would be appreciated. Thanks

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also request that they not file a motion to compel because you have not recieved it. You will respond once you recieve it and you feel a motion to compel is merely a way to garner attorneys fees. also send the meet and confer for the BOP.

If you get a motion you can respond that they have not sent the discovery.

Also get him on here so he can get up to speed if he has to argue the motion and for trial.

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also request that they not file a motion to compel because you have not recieved it. You will respond once you recieve it and you feel a motion to compel is merely a way to garner attorneys fees. also send the meet and confer for the BOP.

If you get a motion you can respond that they have not sent the discovery.

Also get him on here so he can get up to speed if he has to argue the motion and for trial.

Thanks for your response. I'll start looking into how to properly format those requests. By the way, they did finally send me the discovery along with the threat to file a motion to compel. So technically, I do have their discovery now. I'll look into asking for more time to work on it, although I think I can finish it within 2 weeks.

As for my dad, his english is not very good so I just kind of assumed that I would be right next to him during court visits and just answer for him since I semi-know what I am doing. I'll point him to this forum and fill him in on what I've already learned.

Edited by benders1991
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Basically, I agree with what's been posted so far. It might have been to your advantage to be more proactive the first time they mentioned they had already sent Discovery requests, but that's water under the bridge.

Discovery requests are not filed with the court, which is why you don't find them, or the proof of service, in the court records. They are exchanged between the parties, at least until a Motion to Compel is filed.

Play it straightforwardly from here; tell them you've only just now received the Discovery requests and will respond, no need for a Motion to Compel. Even if they file it, though, it's not really a big deal. It just sets a new deadline by which you have to respond.

I mainly wanted to comment on one more thing. In general, unless you are an attorney, you cannot speak for another person in court. So, you cannot speak for you father. However, it's just possible you may have a loophole here you can exploit. If you present yourself as his translator, you will have the opportunity to "expand" upon his responses as you deem necessary and fit.

Good luck.

DH

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Basically, I agree with what's been posted so far. It might have been to your advantage to be more proactive the first time they mentioned they had already sent Discovery requests, but that's water under the bridge.

Discovery requests are not filed with the court, which is why you don't find them, or the proof of service, in the court records. They are exchanged between the parties, at least until a Motion to Compel is filed.

Play it straightforwardly from here; tell them you've only just now received the Discovery requests and will respond, no need for a Motion to Compel. Even if they file it, though, it's not really a big deal. It just sets a new deadline by which you have to respond.

I mainly wanted to comment on one more thing. In general, unless you are an attorney, you cannot speak for another person in court. So, you cannot speak for you father. However, it's just possible you may have a loophole here you can exploit. If you present yourself as his translator, you will have the opportunity to "expand" upon his responses as you deem necessary and fit.

Good luck.

DH

I appreciate your feedback.

I pictured myself in court right alongside my dad basically acting as his unofficial lawyer (even though in the answer to the summons I put him down as being self-represented). I pictured the judge asking my dad a question and me whispering to my dad how to respond so that he didn't mess up. His english is far from perfect but I do think it's passable and he can handle it if we practice enough and cover all of our bases.

I was basically trying to help him avoid all the stress this whole thing has caused me trying to learn how to properly answer everything and trying not to mess up against people who are pros.

I have not always been on top of things as I should have, but it looks like I haven't made a fatal mistake yet.

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The advice you have received is correct. Write them a letter telling them that you did not receive any discovery from them until their letter dated ____ when it was received as an enclosure. You are willing to respond but, since you just received it, you will need __ days. Therefore, you will respond on or before______.

They may respond with some bluster, but if you didn't receive it until recently, then you didn't receive it. If they go ahead and file a moton to compel, you will file an opposition brief with a declaration swearing under penalty of perjury that you didn't receive the discovery until___, wrote them a letter telling them so, and they went ahead and filed a motion anyway. If I were the Judge, I would not be happy with the plaintiff.

You should also write a separate letter meeting and conferring on your BOP. Tell them that you will file a motion to compel compliance or to preclude evidence if you have not received a response on or before___.

Finally, you might want to send a document request seeking two things:

The written agreement referred to in the complaint;and

Any agreement assigning to plaintiff the account referred to in the complaint.

Good luck.

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  • 3 weeks later...
The advice you have received is correct. Write them a letter telling them that you did not receive any discovery from them until their letter dated ____ when it was received as an enclosure. You are willing to respond but, since you just received it, you will need __ days. Therefore, you will respond on or before______.

They may respond with some bluster, but if you didn't receive it until recently, then you didn't receive it. If they go ahead and file a moton to compel, you will file an opposition brief with a declaration swearing under penalty of perjury that you didn't receive the discovery until___, wrote them a letter telling them so, and they went ahead and filed a motion anyway. If I were the Judge, I would not be happy with the plaintiff.

You should also write a separate letter meeting and conferring on your BOP. Tell them that you will file a motion to compel compliance or to preclude evidence if you have not received a response on or before___.

Finally, you might want to send a document request seeking two things:

The written agreement referred to in the complaint;and

Any agreement assigning to plaintiff the account referred to in the complaint.

Good luck.

Hi. Just wanted to give an update on this whole thing. I sent Midland a letter telling them that I didn't receive their discovery until February and requesting that they not file the Motion to Compel. They went ahead and filed the MTC so I will have to write that opposition brief you mentioned. Btw, they got my letter a couple days before the motion to compel and I can prove it because I used certified mail with a delivery confirmation receipt.

I am now working on their special interrogatories. I found an amazing sample letter here: (actually, I'm getting a message saying that I cant post links until I have 20 posts or more...just google "docstoc response to form interrogatories" and it will be a slideshow including the sample for response to special interrogatories).

page 26 is where you see the "Defendants Response to Special Interrogatories" sample which shows how to properly format your responses on pleading paper. I wish I had found this at the beginning and I think it's been incredibly helpful. (note, actually the sample is the plaintiff's response to the defendant's request t answer the interrogatories, but you get the idea, just switch them around).

There is one thing I am unclear about. Before the sample answers the special interrogatories, it has a section titled: "General Objections" and it just states some general objections and they are lettered a through f. How important is it for me to include this part in my response?

Edited by benders1991
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Hi. Just wanted to give an update on this whole thing. I sent Midland a letter telling them that I didn't receive their discovery until February and requesting that they not file the Motion to Compel. They went ahead and filed the MTC so I will have to write that opposition brief you mentioned. Btw, they got my letter a couple days before the motion to compel and I can prove it because I used certified mail with a delivery confirmation receipt.

I am now working on their special interrogatories. I found an amazing sample letter here: (actually, I'm getting a message saying that I cant post links until I have 20 posts or more...just google "docstoc response to form interrogatories" and it will be a slideshow including the sample for response to special interrogatories).

page 26 is where you see the "Defendants Response to Special Interrogatories" sample which shows how to properly format your responses on pleading paper. I wish I had found this at the beginning and I think it's been incredibly helpful. (note, actually the sample is the plaintiff's response to the defendant's request t answer the interrogatories, but you get the idea, just switch them around).

There is one thing I am unclear about. Before the sample answers the special interrogatories, it has a section titled: "General Objections" and it just states some general objections and they are lettered a through f. How important is it for me to include this part in my response?

Make sure yo calendar the last day to file your opposition brief. 9 court days before the hearing. You must also serve by overnight mail.

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And ask for oral arguments. Don't let these clowns not show up to court. They will want the judge to rule on the pleadings. Drag them into court. Always drag your opponent into court. Generally speaking it's the last place a collection attorney wants to be. If they are in court, it usually means somebody is fighting back and if somebody is fighting back against a collection attorney, it usually spells defeat for the collection attorney.

Make them be where they don't want to be. It also sends an incredibly powerful unspoken message of, "I'm not scared, you want a fight? You got it, hit me with your best shot, but you better hope you knock me out." If it is not too late for you to file something, anything with merit at all, I'd also file it. Generally speaking, bullies don't do well against those that fight back, and generally speaking collection attorney's are bullies.

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Make sure yo calendar the last day to file your opposition brief. 9 court days before the hearing. You must also serve by overnight mail.

9 days before the hearing? What hearing?

I hope it's not the hearing that already passed where they filed the Motion to Compel and it was granted by the court........that happened on 3/6 (they got my letter on 3/2 so i was hoping they wouldn't file it). It says that I now have 15 days to respond to their special interrogatories.

Beyond that, there is nothing scheduled until the trial in June. No other hearings or anything. Did I miss my window to file the opposition brief?

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You probably received three documents regarding the motion to compel:

1. Notice of motion;

2. Memorandum of Points and authorities; and

3. Declaration of somebody in support of the motion.

In the notice of motion, it says that the court will hold a hearing on ____, 2012, at ____:00 and it gives the address and department number of the Judge that will hear the motion.

Whenever you get a notice of motion, you should calendar 9 court days for your opposition brief and also calendar the hearing itself.

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You probably received three documents regarding the motion to compel:

1. Notice of motion;

2. Memorandum of Points and authorities; and

3. Declaration of somebody in support of the motion.

In the notice of motion, it says that the court will hold a hearing on ____, 2012, at ____:00 and it gives the address and department number of the Judge that will hear the motion.

Whenever you get a notice of motion, you should calendar 9 court days for your opposition brief and also calendar the hearing itself.

Yes, Midland sent me all 3 along with their discovery in early February. The motion to compel hearing took place on 3/6 and it was granted by the court.

So now I'm confused. I guess my only question at this point is, since the motion to compel has been granted, can I still submit an opposition brief? Or was I supposed to submit it 9 days before the hearing and now I'm stuck with the motion to compel and monetary sanctions?

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Listen to CALAWYER for sure as he is in your state and this is his profession. However, if a motion was granted, unless you want to move for reconsideration, the issue has been settled. In other words, comply with the order of the court, you missed the hearing date.

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Yes, Midland sent me all 3 along with their discovery in early February. The motion to compel hearing took place on 3/6 and it was granted by the court.

So now I'm confused. I guess my only question at this point is, since the motion to compel has been granted, can I still submit an opposition brief? Or was I supposed to submit it 9 days before the hearing and now I'm stuck with the motion to compel and monetary sanctions?

If the hearing took place on 3/6 and the Court has ruled, you are stuck. Check to make sure, however, because your original post on February 24 says " I have less than 2 weeks before they file the Motion to Compel". A motion must be filed 16 Court days before the hearing. Add five more regular days if served by mail. When did they serve you with the motion?

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calawyer, I don't remember the exact date I received their motion, but the envelope postmark says it was mailed on 2/14/12 (Wednesday). So I'm guessing I received it on maybe Thursday 2/16 or Friday 2/17. The actual forms are dated 2/8 and they don't show up on the online record as being filed until 2/17/12 (that's when the 3/6 hearing was scheduled).

Counting court days from 2/14 (excluding Saturdays and Sundays), the 3/6 hearing occurred on the 15th court day. If I count from the day I received their letter (let's say 2/16) the hearing took place on the 13th court day. Does this mean I (actually YOU) found a loophole because they didn't allow 16 days before the hearing (or in my case, 21 days because they did serve me by first class mail)?

By the way, the hearing took place on 3/6 and it looks like it was granted on 3/9 (I'm not sure why there are 2 dates. One is listed under "calendared events", the second is listed under "documents" on the online record).

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Listen to CALAWYER for sure as he is in your state and this is his profession. However, if a motion was granted, unless you want to move for reconsideration, the issue has been settled. In other words, comply with the order of the court, you missed the hearing date.

Thanks for your feedback. it does look like I might be stuck, and if so, I'll just move on and learn from it. but it looks like I might have an out here, although i'm not getting my hopes up.

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hearing was held if no sanctions then just answer by the judges date.

And don't drop the football again judges hate that.

So answer the discovery

file a motion to have all papers translated into your fathers native language. This will make the attorney make mistakes and run their unrecoverable costs up(translation services are not cheap).

then don't forget about the BoP responses they owe you.

I think they have nothing and they know it.

However I think if you check the court file they have admissions deemed against you(they don't care about the other stuff deemed admissions mean you have a tougher time). check that out to see if they requested it.

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hearing was held if no sanctions then just answer by the judges date.

And don't drop the football again judges hate that.

So answer the discovery

file a motion to have all papers translated into your fathers native language. This will make the attorney make mistakes and run their unrecoverable costs up(translation services are not cheap).

then don't forget about the BoP responses they owe you.

I think they have nothing and they know it.

However I think if you check the court file they have admissions deemed against you(they don't care about the other stuff deemed admissions mean you have a tougher time). check that out to see if they requested it.

I didnt attend the hearing, but online it says that Motion to Compel Responses to discovery, sanctions, and order for admissions were all granted. Not sure if I get a bill in the mail or what, but they have been granted. It then says that I have 15 days to answer their first set of interrogatories, request for documents, etc.

I'll look into having everything translated. I didnt even realize that was a possibility.

As far as them having nothing, I agree. They provided nothing with their summons and I have yet to see a single piece of evidence at all besides an account number.

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calawyer, I don't remember the exact date I received their motion, but the envelope postmark says it was mailed on 2/14/12 (Wednesday). So I'm guessing I received it on maybe Thursday 2/16 or Friday 2/17. The actual forms are dated 2/8 and they don't show up on the online record as being filed until 2/17/12 (that's when the 3/6 hearing was scheduled).

Counting court days from 2/14 (excluding Saturdays and Sundays), the 3/6 hearing occurred on the 15th court day. If I count from the day I received their letter (let's say 2/16) the hearing took place on the 13th court day. Does this mean I (actually YOU) found a loophole because they didn't allow 16 days before the hearing (or in my case, 21 days because they did serve me by first class mail)?

By the way, the hearing took place on 3/6 and it looks like it was granted on 3/9 (I'm not sure why there are 2 dates. One is listed under "calendared events", the second is listed under "documents" on the online record).

It doesn’t matter when you received it, it matters when they sent it to you. In the papers you received there should be a proof of service. Were you served by mail? If so, on what day? By my quick calculation, they needed to serve you by hand on February 9 or by mail on February 3 (2/13 and 2/20 were court holidays). If they did not do so, their motion was improper.

Let me know what the proof says.

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It doesn’t matter when you received it, it matters when they sent it to you. In the papers you received there should be a proof of service. Were you served by mail? If so, on what day? By my quick calculation, they needed to serve you by hand on February 9 or by mail on February 3 (2/13 and 2/20 were court holidays). If they did not do so, their motion was improper.

Let me know what the proof says.

They did include the proof of service and it says they mailed it using first class mail on 2/14.

Their POS states:

"On 2/14/2012, I served the within: NOTICE OF MOTION, MEMORANDUM POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL RESPONSE AND IMPOSE SANCTIONS, DECLARATION BY (their lawyer's name) IN SUPPORT OF MOTION TO COMPEL RESPONSE AND IMPOSE SANCTIONS........."

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They did include the proof of service and it says they mailed it using first class mail on 2/14.

Their POS states:

"On 2/14/2012, I served the within: NOTICE OF MOTION, MEMORANDUM POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL RESPONSE AND IMPOSE SANCTIONS, DECLARATION BY (their lawyer's name) IN SUPPORT OF MOTION TO COMPEL RESPONSE AND IMPOSE SANCTIONS........."

Plaintiff messed up. I am sending you a pm.

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