easy619

My (California) battle with Midland Funding LLC

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Well, so it begins. I was served with a summons by midland funding llc a few weeks ago. At first, i was nervous and worried (still am). But after finding this forum and all of the knowledge and information contained, I am feeling a bit better.

I filed my General Denial and Proof of Service at the courthouse today, and had them served on the plaintiffs as well. From what I gather, its time to begin preparing my Bill of Particulars. I have downloaded a few forms from the forum here which i will be using. Once filled out, I'll post them here for proofing.

So, what's next? Their will be a pretrial hearing soon, correct? Can i counter sue midland for my legal expenses (pro se, but not free), lost wages from taking days off of work and emotional trauma?

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Well, so it begins. I was served with a summons by midland funding llc a few weeks ago. At first, i was nervous and worried (still am). But after finding this forum and all of the knowledge and information contained, I am feeling a bit better.

I filed my General Denial and Proof of Service at the courthouse today, and had them served on the plaintiffs as well. From what I gather, its time to begin preparing my Bill of Particulars. I have downloaded a few forms from the forum here which i will be using. Once filled out, I'll post them here for proofing.

So, what's next? Their will be a pretrial hearing soon, correct? Can i counter sue midland for my legal expenses (pro se, but not free), lost wages from taking days off of work and emotional trauma?

You should serve a BOP unless the only cause of action is account stated. Here is a thread with everything you need to know about a BOP:

http://www.creditinfocenter.com/forums/there-lawyer-house/310833-anyone-california-know-what-pos-use-when-serving-answer-complaint.html#post1135453

By all means, you should investigate whether you have grounds to file a cross complaint. Look at the FDCPA and California's Rosenthal Act.

Get a calendar and use it for keeping track of impiortant dates.

The next thing on your plate will be a Case Management Conference. Mark it on your calendar. The CMC is frequently a nice inrtoduction to the Court system because nothing happens and you don't have to worry or be nervous. The Court just wants to make sure all parties have been served or have been dismissed see if there are any problems with discovery, and maybe ask if the parties are intersted in mediation. You will file a CMC statement 15 days before the hearing. Mark that day on your calendar too. Here is the form: http://www.courts.ca.gov/documents/cm110.pdf

Here is the rule (read 3.720-3.735): Title Three Rules

You will notice a duty to meet and confer and a place on the form to discuss. JDB plaintiffs almost never do it. THe Court usually doesn't seem to care. But I like to fax a letter offeing to meet and confer about a week before the statement is due. Then you can say on the form that you tried, but plaintiff did not respond.

Good luck.

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You will get a lot of good help from the guys in Calif. but non better than you will from CALawyer. He has been a great and true friend to this board and the member are lucky that he takes time from his busy practice to advise us.

CALawyer, Gunny and the other attorneys that help us are well respected and appreciated.

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Thank you calawyer! Unfortunately, account stated is the only cause of action. So, on to discovery, production of documents? Damn..that bop sounded good too.

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Just becaues you know they won't need to respond the the BOP, based on the only cause of action being "Account Stated" send it anyway.

First it forces them to work and deal with your file. It only costs the CMRR. It isn't filed with the court, so not a big deal in that respect.

Remember, they like default judgement files, make them work at every turn.

Also you set the perception of Pro Se who doesn't know anything. All the while you are increasing your skill sets and may find down the road they make a mistake that forces them to give up...... based on them thinking you won't catch the glaring error.

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Thank you calawyer! Unfortunately, account stated is the only cause of action. So, on to discovery, production of documents? Damn..that bop sounded good too.

That is actually good for you. That means plaintiff only has one claim. If they can't meet every element of that claim, they lose and have no other claim to fall back on.

If you can't do a BOP, serve a Request for Production ("RFP"). They get a little longer to respond and the motion is a bit tougher to prepare but I like to ask just 3 or 4 very pointed questions. That way, if they refuse to respond, the Judge will likely get very angry.

If they refer to a written contract in the complaint, try these:

1. All DOCUMENTS constituting the assignment agreement referred to in paragraph __ of plaintiff's complaint.

2. All DOCUMENTS constituting credit card application allegedly executed by defendant referred to in paragraph ___ of plaintiff's complaint.

3. All DOCUMENTS constituting the written terms and conditions referred to in paragraph ___ of plaintiff's complaint.

4. All DOCUMENTS constituting the monthly statements referred to in paragraph ___ of the complaint.

I like to include the allegation in the complaint because most judges will think it is crazy to object to producing something that was worthy of mention in a one-page complaint. If they don't mention it in the complaint, ask for the document anyway. So, for example, "All DOCUMENTS constituting the assignment agreement allegedly transferring to plaintiff the account at issue in this action."

A template for your RFP can be found in post number 23 of this thread: Another Cach lawsuit in CA - need a lot of help

A discussion of strategy for written discovery can be found here: CA, Asset Acceptance, Open Acct & Acct Stated, ?'s about Discovery...

Good luck.

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Thanks a ton. Should i do the RFP right away, before the CMC? Does the RFP need to be filed with the court or only served on the plaintiff? Should the rfp be on pleading paper?

Also, is it wise to serve a bop even if they don't have to respond?

Edited by easy619

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You will get a lot of good help from the guys in Calif. but non better than you will from CALawyer. He has been a great and true friend to this board and the member are lucky that he takes time from his busy practice to advise us.

CALawyer, Gunny and the other attorneys that help us are well respected and appreciated.

Nascar too!

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I assume this is good to go, seeing as I only plugged in a few numbers into the template and added a few requests:

DEFENDANT'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

(Code Civ. Proc. §2031.010 et seq.)

PROPOUNDING PARTY: DEFENDANT XXXX XXXX

RESPONDING PARTIES: PLAINTIFF MIDLAND FUNDING LLC

SET NO.: 1 (One)

Pursuant to §2031 of the California Code of Civil Procedure, please provide and serve, within 30 days of the date of service of this request, the written response and

statement required pursuant to CCP §§2031 (g), (h) and (i) and please produce for inspection and copying within 30 days of the date of service of this request, at 9:30

a.m., at [YOUR ADDRESS]the following DOCUMENTS and things listed below.

I. DEFINITIONS

“DOCUMENT” means and includes, but is not limited to, the following: ANY writings, drawings, graphs, charts, photographs, phonograph records, tape recordings, notes,

diaries, calendars, checkbooks, books, papers, accounts, memoranda, correspondence, reports, spreadsheets, working papers, drafts, appointment books, videotape

recordings, and ANY computer-generated, computer-stored or electronically stored matter, such as e-mail, instant messages, computer databases and electronic data

stored on hard disks, floppy disks, magnetic tape or other electronic storage medium, as well as ANY other written, typed, printed, graphic or recorded matter of ANY

kind, however produced or reproduced; ALL “writings” within the meaning of California Evidence Code §250; and ALL “writings,” “recordings” and “photographs” within the

meaning of Federal Rules of Evidence §1001. Any written, printed or electronic copies of DOCUMENTS bearing notations, marks or codes not found in the original shall be

deemed to be different DOCUMENTS and shall also be produced.

“ANY” shall mean “any and all.” Similarly, “ALL” means “any and all.”

1. All DOCUMENTS constituting the assignment agreement referred to in paragraph 6 of plaintiff's complaint.

2. All DOCUMENTS constituting credit card application allegedly executed by defendant referred to in paragraph 7 of plaintiff's complaint.

3. All DOCUMENTS constituting the written terms and conditions referred to in paragraph 14 of plaintiff's complaint.

4. All DOCUMENTS constituting the monthly statements regarding the alleged account.

5. All DOCUMENTS constituting a complete and detailed itemization of all alleged purchases and usages of the alleged account by the DEFENDANT.

Dated: XXX

__________

xxMYxxNAME

Look good? So, I have it served on them, printed like a normal letter, or on pleading paper?

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Pleading paper. Do not file with the Court. Send to plaintiff and have someone prepare a POS.

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Alright, I attached a zip of my RFP on pleading paper. Does this look alright, formatting, wording and all?

RFP.zip

Edited by easy619

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Alright, I attached a zip of my RFP on pleading paper. Does this look alright, formatting, wording and all?

Looks good. Instead of citing CCP §§2031 (g), (h) and (i), however, cite 2031.210 through 2031.250.

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This might be a dumb question, but does this document snd other pleading paper docs need to be printed on legal size paper or would normal8 1/2 by 11 suffice?

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This might be a dumb question, but does this document snd other pleading paper docs need to be printed on legal size paper or would normal8 1/2 by 11 suffice?

If you look at the template for pleading paper, it has a certain amount of numbers running along the side and the number of lines is always the same. The template for a pleading setup should fit on a standard 8.5x11 sheet of paper.

"Legal" size paper doesn't mean that it's the paper used in court :)

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If you look at the template for pleading paper, it has a certain amount of numbers running along the side and the number of lines is always the same. The template for a pleading setup shThould fit on a standard 8.5x11 sheet of paper.

"Legal" size paper doesn't mean that it's the paper used in court :)

thanks. That's what i thought.. don't want to make any dumn mistakes though.

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Alright, I had my RFP served on those JDBs today. In the meantime, I realized I never posted my answers to the 20 Questions, so here we go:

1. Who is the named plaintiff in the suit? Midland Funding LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Stelios Harris & company.. I did some research on the attorney assigned to my case, and she's a rookie...hire less than a year ago into her first legal job.

3. How much are you being sued for? about 8k

4. Who is the original creditor? (if not the Plaintiff) Chase

5. How do you know you are being sued? (You were served, right?) I was served.

6. How were you served? (Mail, In person, Notice on door) In person

7. Was the service legal as required by your state? Yes.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? NONE, not a single letter preceding the lawsuit.

9. What state and county do you live in? San Diego County, CA.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) About a year and a half ago.

11. What is the SOL on the debt? To find out: 4 years in california

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). I filed my answer (general Denial), and served my RFP.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Never had a chance to.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 30 days, already answered.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Nothing, not a single thing besides refering to the last 4 digits of the alleged account.

17. Read this article: Already read it, along with about 100 threads on this forum :) Very helpful people here, quite empowering.

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So, with my RFP served, should i begin forming some interrogatories and ROA's for them, or should i wait for their response to my RFP?

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So, with my RFP served, should i begin forming some interrogatories and ROA's for them, or should i wait for their response to my RFP?

I would wait. Interrogatories are usually a waste of time. You might consider some RFAs after you receive a response to your RFAs. Be prepared to have to file a motion to compel on every set of discovery you serve. It is very wrong, but that is the way many JDBs operate.

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You should serve a BOP unless the only cause of action is account stated. Here is a thread with everything you need to know about a BOP:

http://www.creditinfocenter.com/forums/there-lawyer-house/310833-anyone-california-know-what-pos-use-when-serving-answer-complaint.html#post1135453

By all means, you should investigate whether you have grounds to file a cross complaint. Look at the FDCPA and California's Rosenthal Act.

Get a calendar and use it for keeping track of impiortant dates.

The next thing on your plate will be a Case Management Conference. Mark it on your calendar. The CMC is frequently a nice inrtoduction to the Court system because nothing happens and you don't have to worry or be nervous. The Court just wants to make sure all parties have been served or have been dismissed see if there are any problems with discovery, and maybe ask if the parties are intersted in mediation. You will file a CMC statement 15 days before the hearing. Mark that day on your calendar too. Here is the form: http://www.courts.ca.gov/documents/cm110.pdf

Here is the rule (read 3.720-3.735): Title Three Rules

You will notice a duty to meet and confer and a place on the form to discuss. JDB plaintiffs almost never do it. THe Court usually doesn't seem to care. But I like to fax a letter offeing to meet and confer about a week before the statement is due. Then you can say on the form that you tried, but plaintiff did not respond.

Good luck.

Hi easy619...

Welcome (sorry I'm so late to this).

Just wanted to stress the bold (above) by calawyer.

Given you've served RFP's, do yourself a favor and create or obtain calendars and keep them where you will see them daily. You want to keep track of due dates for YOU and OPPOSING Counsel.

You'll also need rules of court, in order to keep track of the dates/times that items are due. This is super important!

Sounds like you are off to a great start! :mrgreen:

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You should serve a BOP unless the only cause of action is account stated. Here is a thread with everything you need to know about a BOP:

http://www.creditinfocenter.com/forums/there-lawyer-house/310833-anyone-california-know-what-pos-use-when-serving-answer-complaint.html#post1135453

By all means, you should investigate whether you have grounds to file a cross complaint. Look at the FDCPA and California's Rosenthal Act.

Get a calendar and use it for keeping track of impiortant dates.

The next thing on your plate will be a Case Management Conference. Mark it on your calendar. The CMC is frequently a nice inrtoduction to the Court system because nothing happens and you don't have to worry or be nervous. The Court just wants to make sure all parties have been served or have been dismissed see if there are any problems with discovery, and maybe ask if the parties are intersted in mediation. You will file a CMC statement 15 days before the hearing. Mark that day on your calendar too. Here is the form: http://www.courts.ca.gov/documents/cm110.pdf

Here is the rule (read 3.720-3.735): Title Three Rules

You will notice a duty to meet and confer and a place on the form to discuss. JDB plaintiffs almost never do it. THe Court usually doesn't seem to care. But I like to fax a letter offeing to meet and confer about a week before the statement is due. Then you can say on the form that you tried, but plaintiff did not respond.

Good luck.

Hi easy619...

Welcome (sorry I'm so late to this).

Just wanted to stress the bold (above) by calawyer.

Given you've served RFP's, do yourself a favor and create or obtain calendars and keep them where you will see them daily. You want to keep track of due dates of any documents that you send AND receive--Due DATES for YOURSELF and FOR OPPOSING Counsel.

You'll also need local rules of court, in order to keep track of the dates/times that items are due. This is super important!

Sounds like you are off to a great start! :mrgreen:

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Hi easy619...

Welcome (sorry I'm so late to this).

Just wanted to stress the bold (above) by calawyer.

Given you've served RFP's, do yourself a favor and create or obtain calendars and keep them where you will see them daily. You want to keep track of due dates for YOU and OPPOSING Counsel.

You'll also need rules of court, in order to keep track of the dates/times that items are due. This is super important!

Sounds like you are off to a great start! :mrgreen:

Thanks, I'm trying. Done and done. Now I'm studying up on people's responses to RFAs and interrogatories and building a gameplan for when i get mine.

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Alright, I received the Plaintiffs RFP, RFA, and Interrogs today, 5 days after i filed my RFP on them. Should I delay responding to their requests and see if they respond to mine first (5 day cushion to respond even if they don't) ?

So, here's the RFPs, RFAs, and Interrogs they sent, along with what I've put together so far...kind of a mishmash from various threads on discovery. I'm not sure if their proper or worded properly, any feedback is greatly appreciated! PS- The documents do contain the correct number to the alleged account.

RFP

1. Any and all DOCUMENTS that REFER or RELATE to credit cards issued to you by CHASE BANK N.A.

RESPONSE: Objection. Defendant is without sufficient knowledge to admit or deny. To the best of the Defendant's memory, and without any proof provided, Defendant does not remember applying for nor using alleged account and therefore denies. Defendant has asked the Plaintiff to provide proof of the account and any agreement during discovery but plaintiff has not yet responded. Furthermore, Plaintiff has requested DOCUMENTS that should be in plaintiffs possession, considering plaintiff saw fit to bring this action. Defendant reserves the right to supplement his answer to this interrogatory in the event such information is provided.

2. Any and All DOCUMENTS that REFER OR RELATE to a credit card assigned by CHASE BANK from October xx,2004 to XX/XX/2011 for account number ###MY##CARD##NUMBER.

RESPONSE: Defendant has denied knowledge of the alleged account and therefore would have no documentation. Furthermore Plaintiff has requested documents that should be in Plaintiff's possession.

3. Any and All DOCUMENTS that REFER OR RELATE to transactions initiated by you on a credit card assigned by CHASE BANK bearing the account number ##MY##CARD##NUMBER., from Oct. XX to xx/xxx/2011.

RESPONSE: Defendant has denied knowledge of the alleged account and therefore would have no documentation. Furthermore Plaintiff has requested documents that should be in Plaintiff's possession.

4. Any and All DOCUMENTS that REFER OR RELATE to payments made by you to CHASE BANK that were applied to the outstanding balance on a CHASE BANK credit card.

RESPONSE: Defendant has denied knowledge of the alleged account and therefore would have no documentation. Furthermore Plaintiff has requested documents that should be in Plaintiff's possession.

5. Any and All DOCUMENTS that REFER OR RELATE to correspondence sent by You to CHASE BANK from oct. XX to xx/xx/2011.

RESPONSE: Defendant has denied knowledge of the alleged account and therefore would have no documentation. Furthermore Plaintiff has requested documents that should be in Plaintiff's possession.

6. Any and All DOCUMENTS that REFER OR RELATE to correspondence recieved by you from CHASE BANK that referred to credit card number ##MY##CARD##NUMBER.

RESPONSE: Defendant has denied knowledge of the alleged account and therefore would have no documentation. Furthermore Plaintiff has requested documents that should be in Plaintiff's possession.

7. Any and All DOCUMENTS that REFER OR RELATE to telephone calls made by You to Midland Credit Management, Inc.

RESPONSE: Denied. Defendant has never recieved any form of communication from Plaintiff prior to receiving the complaint, nor has proof of the delivery been provided.

8. Any and All DOCUMENTS that REFER OR RELATE to telephone calls recieved by you from Midland Credit Management, Inc.

RESPONSE: Denied. Defendant has never recieved any form of communication from Plaintiff prior to receiving the complaint, nor has proof of the delivery been provided.

9. Any and All DOCUMENTS that REFER OR RELATE to correspondence recieved by You from Midland Credit Management, Inc.

RESPONSE: Denied. Defendant has never recieved any form of communication from Plaintiff prior to receiving the complaint, nor has proof of the delivery been provided.

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RFA

The term Account is defined as CHASE BANK Account number ##MY#CARD##NUMBER.

1. Admit that

you applied for the ACCOUNT.

RESPONSE: Objection. Defendant is without sufficient knowledge to admit or deny. To the best of the Defendant's memory, and without any proof provided, Defendant does not remember applying for nor using alleged account and therefore denies. Defendant has asked the Plaintiff to provide proof of the account and any agreement during discovery but plaintiff has not yet responded. Defendant reserves the right to supplement his answer to this interrogatory in the event such information is provided.

2. Admit that

you used the ACCOUNT.

RESPONSE: Defendant has already denied recollection of this card and therefore this question is improper.

3. Admit that

you recieved billing statements from CHASE BANK or it's predecessor in interest that related to transactions made.

RESPONSE: Objection. Defendant is without sufficient knowledge to admit or deny. To the best of the Defendant's memory, and without any proof provided, Defendant does not remember applying for nor using alleged account, nor recieving any billing statements related to the alleged account and therefore denies. Furthermore, Defendant has asked the Plaintiff to provide proof of the account and any agreement during discovery but plaintiff has not yet responded. Defendant reserves the right to supplement his answer to this answer in the event such information is provided.

4. Admit that

you made payments on the ACCOUNT.

RESPONSE: Defendant has already denied recollection of this card and therefore this question is improper.

5. Admit that

you owed 7xxx.xx on the ACCOUNT at the time the complaint in this action was filed.

RESPONSE: Defendant has already denied recollection of this card and therefore this question is improper. Furthermore, Defendant has not seen any authenticated records showing how alleged balance was calculated.

6. Admit that

you have not repaid the 7xxx.xx due on the ACCOUNT.

RESPONSE: Defendant has already denied recollection of this card and therefore this question is improper. Furthermore, Defendant has not seen any authenticated records showing how alleged balance was calculated.

7. Admit that

the last payment you made on the ACCOUNT was March xx, 2011.

RESPONSE: Defendant has already denied recollection of this card and therefore this question is improper.

8. Admit that

you recieved the Notice of New Ownsership and Pre-Legal Review from the Plaintiff, Midland Funding LLC.

RESPONSE: Denied. Defendant has never recieved any form of communication from Plaintiff prior to receiving the complaint, nor has proof of the delivery been provided.

9. Admit that you did not dispute the ownership of the account by Plaintiff Midland Funding LLC.

RESPONSE: Defendant has already denied knowledge and receipt of any form of communication of plaintiff prior to receiving the complaint, and therefore this question is improper. Furthermore, Defendant has not seen any authenticated records showing that Midland Funding LLC indeed owns the alleged account.

10. Admit the Notice of New Ownership and Pre-Legal Review attached hereto as "Exhibit A" is a true and correct copy of the letter you recieved from plantiff Midland Funding LLC. (Exhibit A includes a letter (which i never received) stating that Midland Funding LLC has recently purchased my account from CHASE, and they are considering forwarding the account to an attorney for possible litigation unless i pay. The Letter contains the correct original account number, as well as their new acccount number, and the letter is addressed to an address which i have never lived at. It is dated 11/12/2011. It also contains a standard disclosure page, as well as a "Statement" displaying the original Chase Account number (Correct), their MCM account number, the balance, interest rate (10%) and a "Transaction" stating that Midland Funding has purchased my account. This does not appear to be a bill of sale. It is again addressed to an address at which i have never lived.

RESPONSE: Defendant has already denied knowledge and receipt of any form of communication of plaintiff prior to receiving the complaint, and therefore this question is improper. Furthermore, "Exhibit A" is addressed to a residence at which defendant has never lived nor occupied for any period of time.

11.Admit that

you did not dispute the accuracy of the Notice of New Ownership and Pre-Legal Review lettter attached hereto as "Exhibit A" that you recieved from Plaintiff Midland Funding LLC.

RESPONSE: Defendant has already denied knowledge and receipt of any form of communication of plaintiff prior to receiving the complaint, and therefore this question is improper.

12. Admit that you owe Plaintiff Midland Funding LLC 7xxx.xx

RESPONSE: Defendant has already denied recollection of this card and therefore this question is improper. Furthermore, no contract has been provided by Plaintiff so that determination of ownership can be ascertained.

SPECIAL INTERROGATORIES

The term Account is defined as CHASE BANK Account number ##MY#CARD##NUMBER.

1. State Each Name by which you have been known the last six years.

RESPONSE: XXXX XXXX.

2. State each residence you have had within six years prior of the date of your responses, including the dates you lived at each address.

RESPONSE : XXX 2010-2012

XXX 2009-2010

xxx 2008-2009

XXX 2006-2008

3. State the name, address, and telephone number of each employer you have had for the past five years, including the dates you worked for each employer.

RESPONSE: Objection; Defendant's alleged employers have no relevance to this action.

4. Did you ever report to CHASE BANK that there was an inaccuracy in any billing statement you received from CHASE BANK?

RESPONSE: Objection. Defendant is without sufficient knowledge to admit or deny. To the best of the Defendant's memory, and without any proof provided, Defendant does not remember applying for nor using alleged account and therefore denies. Defendant has asked the Plaintiff to provide proof of the account and any agreement during discovery but plaintiff has not yet responded. Defendant reserves the right to supplement her answer to this interrogatory in the event such information is provided.

5. Did you ever report in writing to CHASE BANK that the ACCOUNT was opned as a result of fraudelent activity?

RESPONSE: Defendant has already denied recollection of this card and therefore this question is improper.

6. State in detail the facts upon which you base your contention that you are not responsible, in whole or in part, for the damages plaintiff claims in this action.

RESPONSE: Defendant objects on the ground that this interrogatory is vague and ambiguous in the context of this litigation. Defendant is unaware of any damages suffered by the plaintiff as defendant understands that term.

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