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Another Midland Case - Next Move After Their Response to PODs


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Hi all,

I've been following the posts on this board for a few months now and since I've been able to find most of the answers to my questions I haven't felt the need to post. However, now I'm simply overwhelmed. I don't have as much as time as I would like to focus on handling this lawsuit and I'm confused as to what my next step should be for the best possible outcome. First off, allow me to list an account of events so that you are all familiar with how far I am in my case and my current situation:

  • Late November, received summons for one and only one cause of action: Account Stated by Midland Funding LLC and attorneys Snyder & Harris. No evidence or exhibits showing cause attached.
  • Mid December, filed my answers and affirmative defenses.
  • Mid January, received discovery requests from Midland.
  • Mid February, responded to Midland's request with objections and denials.
  • Mid March, sent my discovery request for PODs to Midland.
  • Late April, received response to my PODs from Midland 1 day before deadline.
  • Have a Case Management Review at the end of May.

I know the common strategy amongst many of the veterans on this board is to limit affirmative defenses to whatever is applicable to one's specific case. Unfortunately, I found this board after I filed my answers and ended up listing quite a few, one of which is lack of privity. I hope this doesn't hurt my case too much. If anyone wants me to post the affirmative defenses I listed with my answers, please let me know.

More importantly, I'd like to know what I should do in regards to exhibits 1 - 4 I received as Midland's response to my PODs:

Response Page 1:

docs.google.com/open?id=0B5UCaKCdpsGCa3hyWnJnX2kyXzg

Response Page 2:

docs.google.com/open?id=0B5UCaKCdpsGCQl9oSDVwYUFwamc

Response Page 3:

docs.google.com/open?id=0B5UCaKCdpsGCSFZScUhEaTk2bXc

Bill of Sale:

docs.google.com/open?id=0B5UCaKCdpsGCb0hXcWtlRjJFNjg

Closing Statement:

docs.google.com/open?id=0B5UCaKCdpsGCYWZOZnBZaWgxejQ

Data Sheet:

docs.google.com/open?id=0B5UCaKCdpsGCNjg5a0pNWEFJdTg

Affidavit of Sale 1:

docs.google.com/open?id=0B5UCaKCdpsGCNGxTaWZIUjZyajQ

Affidavit of Sale 2:

docs.google.com/open?id=0B5UCaKCdpsGCNGpxNkhETm5waGc

Certificate of Conformity:

docs.google.com/open?id=0B5UCaKCdpsGCWUltRFJSMnctMTQ

Verification:

docs.google.com/open?id=0B5UCaKCdpsGCdVh4Nkg1NVlub2s

I received these documents along with a copy of the credit card agreement, a year's worth of statements, and collection letters. I know the affidavits are bogus. The 2nd one with Christina Paperman mentions at the time of sale the amount I allegedly owe which when I checked in the statements around the date of sale is incorrect.

I'm not sure what to do next. I know I have to attack their standing, but I'm not exactly sure how to do that. Do I wait and see what happens at the Case Management Review? How do I attack these documents? Do I subpoena the employment records of the affiants? File a motion to strike the affidavits as hearsay? Forge a set of RFAs and ROGs based on these documents? Do I ask for a Bill of Sale specific to the alleged account? All of the above?

Also, I received no evidence showing causing for the lawsuit when I received the summons. Is this proper conduct?

I know in California, we have to file a Case Management Statement 15 days before the date of the review/hearing. What should I write without telegraphing my strategy to the opposing counsel? I know I have a lot of questions, but any suggestions as to what my next move should be would be much appreciated.

Thanks in advance!

Edited by DebtShackled
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Found a thread by ASTMedic whose situation is very similar to mine, only it doesn't seem like he received any affidavits with Midland's response to his PODs:

creditinfocenter.com/forums/there-lawyer-house/312260-summons-midland-funding-where-start-5.html

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Found a thread by ASTMedic whose situation is very similar to mine, only it doesn't seem like he received any affidavits with Midland's response to his POD

Similar is an understatement. So I got a BOS/affidavit in response to my RFPOD. It says at the bottom that the docs are made in the regular course of business.......yada yada yada. I think it's a two birds one stone thing but has a bunch of blacked out stuff and ZERO acct info on it as to what acct it's attesting to. It is signed by a CHASE "employee" and the Midland president.

Here's the break down of my case:

Got my complaint paperwork in Jan

Filed a general denial about 2 weeks later

Sent RFPOD about 2 weeks after that, they responded the very last day they could. Total crap responses. All objections. They attached the BS bill of sale that doesn't say crap about my acct, approx 1 year of statements that are close to the end of the 5 year life of the card, letters they say they sent me trying to collect, generic card terms.

They sent me RFPOD, ROGS and all that crap. I denied or objected to anything I could.

I sent them a meet and confer letter by fax and CMRRR last Friday and had my CMC this last Monday. At the CMC some rent a jackhole showed up and just stated that discovery was ongoing and wanted 6 months till court. Court is set for Oct 9th. They have till tomorrow to respond to my meet and confer. If not then I'll be taking action.

The CMC is VERY basic, or at least mine was. Nothing to stress. It's just a "do you both have your s**t in order, are you playing nice?". It lasted all of 7-8min TOPS. I said they haven't provide me s**t for evidence and I'm in the process of a meet and confer. Wham bam thank you mam.

If you need any help let me know. PM is fine if you want to keep stuff on the low low.

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And yes. Fill out the CMC statement. You'll look bad if you don't. It's not for Midland so much as the court. It's really just basic "what has or has not been done" stuff. Bringing the court up to speed as to where things are. You don't have to spell out your defense or anything. The more I get into this and read the more I realize these turd buckets don't have a case that even Judge Judy would want to hear. It's got holes big enough you could sail the Queen Marry through. Your job is to prep and have some understanding of how this all works. They win from one of two things, you don't show up or f*** up. Stay on top of things and you'll start feeling better about it.

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Thanks for the response, ASTMedic. Yeah...definitely an understatement, I later read your entire thread and my case is almost exactly identical to yours.

I've calmed down since I posted this thread and simply continued researching. Like you, I also want to send a meet & confer in regards to the deficient response to my PODs. I want to ask for a Bill of Sale with a specific description of the alleged account and for all billing statements since the conception for verification of the amount in question.

Also, in one of Coltfan's post, he mentions to send RFAs and ROGs to question the credibility of whatever evidence they've presented so far, so I guess I'll be doing that too. Though, I've been wondering about this. Can you ask for the employment records of the affiants in a PODs? What about asking or having them admit if the affiants are employees of Midland?

That is so good to know about the CMC! That's such a relief since I feel unprepared and I've never been in court before so I was definitely stressing a bit. Speaking of which, I got Midland's CMC statement the other day and that gave me a better idea of how to fill mine out, though I'm a bit peeved that they said they tried to meet & confer with me even though I heard nothing from them all this time. Not sure if I should just go with it or mention something since it is against the rules in CA.

>> "It's got holes big enough you could sail the Queen Marry through"

LOL. I'm beginning to feel the same way and beginning to have much more confidence. Thanks very much for the encouragement and support. I'm looking forward to destroying these buffoons!

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They said the EXACT same thing in their CMC statement with me. So I said "nope they didn't". They also wrote they didn't receive my response to their RFPOD and all their discovery. So I said "funny I've got this little green piece of paper saying you did".

I went to my CMC with all the paperwork I have from the case thus far all organized in a binder. It's a good idea as you will feel more prepared and look it too. That was my very first time in court so I feel your pain there.

Remember you have 45 days from the day you got their response to your POD to file your MTC and you need to M&C before you file the MTC. I drafted a letter, faxed AND sent it CMRRR so I have proof. I haven't sent a single doc that isn't CMRRR.

Did you get a bill of sale like I did? Does it say the files are electronic records? That opens a huge can of worms for them to have to prove the reliability of those electronic records.

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FYI I can't open your google docs to view them.

Other people will have to answer the questions about ROGS and that stuff. What did you ask for in your RFPOD?

Sorry this is broken into a few posts. I'm at work and post as I think of something and have a free moment.

Edited by ASTMedic
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I want to ask for a Bill of Sale with a specific description of the alleged account and for all billing statements since the conception for verification of the amount in question.

And if you get them, you've just shot yourself in the foot - or the head.

In Discovery, you ask the plaintiff to show you what evidence they will use at trial. In theory, if it's overwhelming, you may cave in and negotiate a settlement. But if they send documents that are inadequate: REJOICE! And plan how you will attack it AT TRIAL. Don't tell them their documents are inadequate, or they'll cook up something harder to attack. They will tend to underestimate you as a pro se defendant, and out of natural laziness will do as little as possible to get by. Don't alert them to the fact that you know more than the average yokel, and motivate them to doing more work to dig up the documents to nail you.

You attack their standing, (again, AT TRIAL) by pointing out that your account is not specifically mentioned in the Bill of Sale, so there is no proof your account is owned by them.

At the CMC, probably the only thing that will be discussed is whether Discovery is complete, and are both sides ready for trial, and if so, a date for trial will be set. CMC is not the time or place to attack their evidence.

Good luck.

DH

PS. I don't have access to it now, so search for Account Stated and my username. I've posted stuff before about the requirements for an Account Stated: there must have been prior business relationship between the parties, there must have been an agreement as to the amount owed, etc.

Edited by debtorshusband
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But if they send documents that are inadequate: REJOICE! And plan how you will attack it AT TRIAL. Don't tell them their documents are inadequate, or they'll cook up something harder to attack.

So then why does anyone file a MTC? I understand and agree with your logic but just want to understand this better since I'm in the process of a meet and confer and writing a MTC about their Bill of Sale.

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So then why does anyone file a MTC? I understand and agree with your logic but just want to understand this better since I'm in the process of a meet and confer and writing a MTC about their Bill of Sale.

You need more experienced advice, like from calawyer, but IMHO, you only send a Motion to Compel, as a matter of form, if they don't response at all to your Discovery requests. Remember, they can only use at trial what they provided during Discovery, so it they provide crap, that's what they're stuck with, and you plan your strategy to beat it.

Regards,

DH

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You need more experienced advice, like from calawyer, but IMHO, you only send a Motion to Compel, as a matter of form, if they don't response at all to your Discovery requests. Remember, they can only use at trial what they provided during Discovery, so it they provide crap, that's what they're stuck with, and you plan your strategy to beat it.

Regards,

DH

Thats who I have helping me with the MTC. I'm torn due to the fact that I agree with what you're saying. In CA the final say for evidence is the CCP 96 if I understand things right. Untill then they can swap things around, no?

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...final say for evidence is the CCP 96 ...

This alone puts things over my head, plus I'm not up to speed with either your case or the OP of this thread. I just jumped in reflexively when I saw that part about asking for a "better" BOS. And I have no first-hand experience with the Meet and Confer, so I'm at a loss there, too.

I certainly yield to calawyer's expertise, but if you have doubts the MTC is the right thing to do, and he's helping you, ask him to explain the logic of it.

Good luck.

DH

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Hi ASTMedic,

Sounds like they went too far with CMC statement. That'll work in your favor when you show the court the green mail receipt and the docs you sent.

I'm not as organized as I'd like to be. Just have all my docs in a plain manila folder. I definitely have to consider the binder.

45 days is plenty of time. I got the response about 2 weeks ago. Thanks for advice about CMRRR. So far, I've been consistent with mailing documents that way. Don't want to be caught unprepared should those buffoons say they didn't get something.

The bill of sale doesn't mention the words 'electronic records' but it does mention 'Final Data File and 'database', so I would think it is electronic.

I pulled the google doc files because I got a little paranoid after I read that people from these JDBs browse the forums, and even though I blacked out specific information pertaining to me, that they would recognize the formatting of the docs. I'd just rather be safe.

On my PODs, my requests were rather simple:

1. ALL DOCUMENTS relating to or constituting ANY agreement between defendant and the original creditor.

2. ALL DOCUMENTS relating to or constituting ANY assignment to plaintiff of the account referred to in the complaint.

3. ALL DOCUMENTS relating to or constituting ANY sale of the account referred to in the complaint.

They objected to all these stating overbroad and burdensome, privileged information, protected by attorney-client...and blah, blah.

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Hi debtorshusband,

I understand your logic about not asking for better evidence. I suppose I'm confused as to when it's appropiate to dispute evidence. I was always under the impression that evidence can be disputed or questioned during discovery. By your logic, it seems like in discovery, what's being passed around from and to each party is not yet evidence and that evidence must be formerly introduced to court pursuant to CCP 96. Is that when we formerly dispute the evidence or does that happen during trial? By that notion, it sounds like it would be best that the trial date be set to be as soon as possible.

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1. ALL DOCUMENTS relating to or constituting ANY agreement between defendant and the original creditor.

2. ALL DOCUMENTS relating to or constituting ANY assignment to plaintiff of the account referred to in the complaint.

3. ALL DOCUMENTS relating to or constituting ANY sale of the account referred to in the complaint.

They objected to all these stating overbroad and burdensome, privileged information, protected by attorney-client...and blah, blah.

Sounds just like their response to me. I'd bet my a** that they are an exact copy.

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Sounds just like their response to me. I'd bet my a** that they are an exact copy.

I cross-referenced my docs with the ones you have posted on your thread and though they lumped in the general objections with their preliminary statements. For the most part, they say the same thing. The list of exhibits and the objections directly after each request were verbatim.

The redacted bill of sale is the exactly the same wording as well.

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This alone puts things over my head, plus I'm not up to speed with either your case or the OP of this thread. I just jumped in reflexively when I saw that part about asking for a "better" BOS. And I have no first-hand experience with the Meet and Confer, so I'm at a loss there, too.

I certainly yield to calawyer's expertise, but if you have doubts the MTC is the right thing to do, and he's helping you, ask him to explain the logic of it.

Good luck.

DH

I asked him to explain the logic so I'll post that when he get's back to me.

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Hmmm...I'm thinking we don't have to fight these affidavits because it only authenticates the bill of sale they gave us, which is lacking info pertaining to the alleged account. This would mean the evidence presented so far would be insufficient to show proof of standing. This would fall in with debtorshusband's line of reasoning to not request better evidence.

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If they didn't send any affidavits to you, then I think your case will be a bit easier than mine. Though they might produce them later if discovery is still ongoing.

I'm sure they will.

Hmmm...I'm thinking we don't have to fight these affidavits because it only authenticates the bill of sale they gave us, which is lacking info pertaining to the alleged account. This would mean the evidence presented so far would be insufficient to show proof of standing. This would fall in with debtorshusband's line of reasoning to not request better evidence.

I think you can post those docs so you can get the opinions of others. Even if they look at your stuff what are they going to do. I just keep the really important stuff in PM so they cant see that.

I noticed in the Certificate of Conformity has no seal of a notary and it says its a notarized?? That thing looks like it can be ripped through easy. A kids forged sick note to a school looks more believable than that thing.

You'll have to ask around about the affidavits. I don't know much about those. A lot of the time you'll get an affidavit before trial in lieu of someone testifying. Really the way to counter the ones you got is you would subpoena the person that signed due to the fact that a piece of paper is hearsay. Is Midland going to want to pay 2 Chase employees to come to CA and testify????? I'd be willing to bet not. (I think the 150miles from the court thing might apply too)

Just about everything looks the same as mine. Remember that they have flat out said that the docs are electronic files. Start looking into how electronic files are supposed to be proven trust worthy.

Edited by ASTMedic
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Hmmm...I'm thinking we don't have to fight these affidavits because it only authenticates the bill of sale they gave us, which is lacking info pertaining to the alleged account. This would mean the evidence presented so far would be insufficient to show proof of standing. This would fall in with debtorshusband's line of reasoning to not request better evidence.

Midland Defendant, "Judge, I require a bill of sale specifically stating a sale from the Original Creditor to Midland with my name, account number, and correct balance." Midland Attorney, "Judge, the Plaintiff does not do business that way. The Plaintiff buys bulk debts in huge portfolios and only one bill of sale is available." Judge, "Attorney, you have 30 days in which to enter a bill of sale into the record specifically naming this Defendant, otherwise this case will be dismissed."

A gentleman I helped a couple years ago, kept me abreast of his suit and described the above exchange between the Plaintiff, Midland Funding LLC, himself, the Defendant and the Judge.

It's really just that simple. Several of you try to make it a lot more complex than it needs to be.

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Midland Defendant, "Judge, I require a bill of sale specifically stating a sale from the Original Creditor to Midland with my name, account number, and correct balance." Midland Attorney, "Judge, the Plaintiff does not do business that way. The Plaintiff buys bulk debts in huge portfolios and only one bill of sale is available." Judge, "Attorney, you have 30 days in which to enter a bill of sale into the record specifically naming this Defendant, otherwise this case will be dismissed."

So at that point they have to go get (i.e. make one) a BOS that has midland and chase signatures. Any one want to take odds on them getting something that would fly in court?

Then they have to still get the people who signed to come testify in court. (see: a cold day in hell)

Does that all sound accurate?

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It depends on where you are. Some states accept just about anything these JDBs show up in court with, particularly Florida. Another way to do it is send them a POD asking for the unredacted list of accounts showing yours. They will either object or refuse to provide it. Then you send an RFA and make them admit they do not have admissible evidence proving they purchased your specific account. It's one or the other, they can't say "we have it but we can't show it to you, take our word for it, we own your account."

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