ASTMedic

How I beat Midland in California

132 posts in this topic

So if you're just reading this forum for the first time because you Googled "Midland Funding Summons" like I did 9 months ago I'm sure you're freaking out that someone showed up and handed you a summons. Your mind is spinning with all the options you feel you have at this point (and I know first hand that those options seem crappy) but the very last one on your list is "Fight these *expletives*". I'm sure it is the VERY last thing you think you could ever do and the thought of even being successful feels like a long shot at best. Well YOU'RE WRONG!!!!!! It's not as hard as you might think and the odds of you winning when going to court with a JDB (junk debt buyer) are more in you're favor than theirs 90% of the time. They are unwilling to buy the evidence they need to win and have to get someone to vouch for the docs they want to use anyway. So it's a matter of following the rules and calling their bluff and the odds are well in your favor.

I am a 33 year old high school grad and work as a Paramedic for the past 12 years. I have a year of college education before becoming a medic so that gives you an idea of where I started my journey on this forum. I have been to the court house, not court before a judge, all of about 2-3 times in my life before this, and those were for traffic infractions. I have NEVER been in a courtroom and I was, to put it lightly, inexperienced in the area of law.

So along came this forum and the people that are on here. These people are AMAZING and taught me how to fight my case. Now if you're here to have someone do all this for you then you need to reevaluate your intentions. YOU and only YOU can legally fight your case unless you hire a lawyer. So you need to understand everything about your case so you can defend yourself if your case makes it to court.

Read this thread by Coltfan. It really helps us understand standing since it's the key to a JDB case, or any court case. This is how you take apart the JDB's case by making them prove they have standing to sue. Guess what, they usually can't.

Two days ago I had court and today I found out I won my case. Here are the docs that I used while fighting Midland. These docs are for your reference and are not legal advice. You need to understand how they apply to your case and what is contained in them in the event you have to articulate a point to a judge. This case was in California and as such case law applies to Cali. Study your local court laws to find due dates for motions and other items. Please read around this forum since your case may not fit mine and other options might be better suited.

I used a general denial since the content of the complaint wasn't verified. This, in my opinion, gives the JDB very little to grab hold of if you were to use the wrong affirmative defenses. KISS method, you know. I tried to play as stupid as possible to keep from tipping my hand that I was building my army. Just remember do you really want to ask for docs that will only help build their case against you??

All docs you send to the plaintiff need to have a proof of service attached and signed by someone that isn't a party to the case. Send everything, and I mean everything, by Certified Mail Return Receipt Requested (CMRRR) so you have proof they got it. Save the green card you get in the mail and attach it to your copy of the doc it applies to so you can reference it easily if they say they didn't get something. (Not uncommon)

As you get docs from the JDB put them into a binder that is divided into sections so you can easily find what you need if you go to trial. It's easier to do this as you get them than later when you have a huge stack.

I got my summons and answered the complaint with the general denial. Do this first since its due no more than 30 days after you were served.

I sent my Request for Docs to start my discovery:

My Request for Production of Docs

(Discovery doesn't get filed with the court so just save copies and the CMRRR for each one you send)

They sent me RFA, ROGS and Doc request and I responded:

Response to Plaintiff's Request for Admissions

Response to Plaintiff's Request for Docs

Response to ROGS

They responded to my Request for Docs with junk. Junk that most here seem to get in their discovery. When I say junk I mean nothing proving real ownership of your account. At this point I had a choice since most JDB's will respond with as little evidence as possible (since that's all they have). You can either send a Meet and Confer if they don't respond with the evidence needed to prove ownership. If they still side step you then you will have to file a Motion to Compel. But again do you want to tell them you know their docs won't win in court????? Because that is what you will do by forcing them to produce better evidence. Isn't the point to have a better case than your opponent?

I was in the process of prepping a MTC and opted to just keep my mouth shut and drill them at the last second when they didn't have much time to work with.

Here is the MTC and separate statement but again I never used them.

So next was our Case Management Conference (CMC). The CMC is VERY basic and nothing to stress about (but you still will, I did). Dress for war since this will be the first time they get to size you up. This will be in front of a judge so be ready for that too. You will just be asked if things are going as planned and if anything needs to be ironed out. About 99% of the time the JDB lawyer will try and push trial back in hopes you will loose focus and forget something. Didn't work in their favor this time. You can try and fight this or use it to your advantage too since time can work on your side too. Be sure to file a CMC Statement prior to your CMC.

After this I opted to go the route of being silent and vanished like a fart in the wind until 45 days before or trial date. This time was a total of 4 months since the rent a lawyer that they hired for the CMC pushed to have the trial moved as far out as they could.

So at this point (45 days out) I sent my CCP 96. The CCP 96 makes the JDB disclose everything they intend to use in court. If they don't disclose it then they can't use it so it's a 100% mandatory tool in your case. DON'T MISS THE DEADLINE FOR IT!!!!!!!!!

They will most likely respond with the docs they are going to use and any witnesses they plan to use. Most of the JDB will have a CCP 98 (affidavit in lieu of live testimony) submitted in an attempt to get the bogus docs past the business doc hearsay rule with out having to use a live witness. The key here is to subpoena the witness that is listed on the CCP 98 at the closest address to the court. The reason for this is that 99% of the time that person isn't going to be available for personal service there. Notice I say personal service, per CCP 1987(a) the service of a subpoena must not be in care of. It has to be to the witness. DO NOT let the JDB try and side step this. (Edit 6/25/13 - there is now Cali case law about the CCP 98 service. Calawyer posted a thread about it on the forum. Be sure to include it in your brief and MIL because they will attempt to side step the fact that service was unsuccessful.)

So per CCP 98 you can attempt to serve the witness 20 days before trial at the address given. They address they give must be 150 miles at MAX from the court. If it's further it doesn't follow the code. They tried to give me 5 addresses to use for service but only one was in the 150 miles and that address was vacant (not good for them). So fill out a Subpoena and have the Sheriff Dept in the county where the address is listed attempt service. If they don't then use a process server. Be sure the server knows that service needs to be to the witness ONLY. It's the law. If service is unsuccessful then you can submit a Motion in Limine just before trial to get the CCP 98 affidavit tossed out. With no witness they have no way to back up the docs they want to use for evidence. I wrote this to help those after me understand why attacking the witness is so important.

So next is the Motion in Limine and the Declaration in support of it. This will get the affidavit in lieu of testimony tossed and basically kill the case. No witness to back up the docs then the docs are hearsay and they can't prove they have standing.

You also need to file a Trial Brief before trial. This presents your case to the judge. This will educate, him or her, as to why the JDB has no case. It has case law and references to codes of civil procedure in it. It's your case in a nut shell.

I also filed a Request for Judicial Notice. This points out facts that may become part of the trial that are so obvious that they can't be contested. An addess is either outside the 150 miles or its not, no debating that. I submitted the request to point out that the mileage for 4 for the 5 CCP 98 addresses were clearly outside of the 150 mile range stated in the statute. I attached printouts from Google maps showing the miles.

The MIL, Brief, and judicial notice all need to be sent to the plaintiff too. CMRRR remember?

Here is a 60 day pretrial checkoff that was written by Seadragon. Links have been added to the appropriate docs.

Next comes trial, if it gets that far. Wear a suit, rent one if you have to. I live in a county that has a fair amount of low income people and when I got called up by the judge I heard a guy behind me say "I thought he was a lawyer". That's what you want. Take your trial binder that you made. Act professional, it will go a long way with the judge. At the beginning of my trial the judge asked opposing counsel if he was a lawyer. I think he was so unimpressed with the lawyer's appearance that he really didn't think he was a lawyer, needless to say the lawyer was PISSED.

I'm going to stop here for now. By this point you will be asking questions on the forum that apply to your case so you won't need this. (Edit: I added more about the trial in a post farther down in this thread at people's request. You can read more there about how trial went there)

Just remember you can do it. They are beatable most of the time and they usually get stomped. Why do you think most don't go to trial?

Thanks to Calawyer and Seadragon. Without them this wouldn't have been possible.

Feel free to PM me with questions. I may not see your thread so you might need to ask me if you have a question.

If others want to add to this thread feel free.

(Oh and Midland if you read this :<img src=:'> and send a better lawyer next time. The judge had to ask him if he was a lawyer at the beginning because he looked so lost, that's sad.)

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Wow! This is awesome! Congratulations and thanks so much for sharing your story and documents. I love how your vanished like a "fart in the wind" :shock: LOL!! Sooo funny.

Congrats again!:D

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This is nice and thorough. I'm especially studying the trial brief. Wish I could copy it, though.

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This is nice and thorough. I'm especially studying the trial brief. Wish I could copy it, though.

If it fits your case go ahead

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Cliffhanger?
So what happened during the trial?


I got there and saw the rent a lawyer. He asked for me by name. I said yep and he asked to go out in the hall and talk (SOP). So he asked how we could settle this. I said with a dismissal and he was speechless and kinda cocked his head. So I went back in the courtroom. He asked if I had the subpoena I tried to serve and I said yep I made you a copy.

Judge called us up and began looking at the MIL. The rent a lawyer proposed that CCP 1987(a) applied and that I should have served Midland directly. I countered that 1987(a) states that service in person is required and that serving a "witness" in San Diego would no longer be economical litigation. Judge took 15min in chambers and came back out and stated that the MIL was granted. He stated that CCP 98 clearly applies here and that the legislature wouldn't have written it as such if they didn't intend for it to be applied in that way.

So then the rent a lawyer called me as a witness. Asked if I opened a CHASE card. I figured saying "I don't recall" could get me in hot water with a good judge so I said yes. I think it caught the lawyer off guard figuring I'd just lie. I answered "yes" to the questions about places of residence and if I got mail at those location. Then I answered "I don't recall" to the rest of the questions for things like balance and did I receive statements at my residence. The opposing counsel finished up his questions by asking if I was on any drugs or other medications that would affect my memory. I just plainly said "no" and he asked the question again and he got the same response. I think at that point the rent a lawyer was pissed I didn't cave on the stand. Judge asked if I wanted to make a statement. I said "yes about the card statements provided" and he advised me that it was on the record and opposing could cross so I said "thanks, no I don't want to make a statement" (I think that was his way of saying "are you sure you want to do this??" so I took his hint and stepped down). The judge seemed frustrated that the rent a lawyer called me as a witness in the first place. So after I stepped down the judge stated he is taking notice of the judicial notice for mileage (he almost seemed impressed I submitted it) and he would give us a written verdict in 2 weeks.

Judge didn't seem pleased that Midland supplied a vacant address for the CCP 98. All in all he seemed to be on my side and was puzzled that opposing counsel would use 1987(a) as an argument since CCP 98 was clearly made for this type of case. He even stated that the two conflict with each other. Edited by ASTMedic
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That's awesome! Congratulations!!

And thank you very much for posting ~ all of this will be very helpful to me :D

Let me know if you need help

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The only thing I would have done different is that when the lawyer asked about medication the 2nd time, I would have said "Objection, the witness has already answered the question!". As a pro se, you are still your own lawyer and can object to any question that is objectionable.

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The only thing I would have done different is that when the lawyer asked about medication the 2nd time, I would have said "Objection, the witness has already answered the question!". As a pro se, you are still your own lawyer and can object to any question that is objectionable.

He was already a whipped puppy at this point. Being overly polite was more insulting than really fighting back. I think if the judge had his way he would have never let the lawyer even call me to the stand. He knew the case was dead with the MIL but was giving him the rope to hang himself.

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I hope you're getting ready to drag them in for a debtor exam!

I am going to file to get my expenses back. Is this the same thing?

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If you file the MC-010, they will take their sweet time paying you... if you drag them for a debtor exam, they will probably pay a lot faster.

I say file the MC-010 and do the debtor exam.

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Wow, I hope everybody that actually goes to court really reads closely how you handled yourself in court. Now that's how it's done !! That was so very smart of you to read the judge and take the hints. Also the short and right to the point answers, you're right, you really confused the other side.

That is similar to what I did. I admitted things that the other side was just speechless and in no way prepared for. They ask you questions that appear to be just an absolute nightmare for your case but are irrelevant. Then when you answer honestly they have no rebuttal and they stand their looking like a stooge in front of the judge.

Nice job knowing when to shut up when you were winning. Also it sounds like you did not get into the stock b.s. answers when you were on the stand. I agree about the objection to asking you a second time, but on the flip side it made the other side look desperate.

You really just kicked their a&#036;&#036; all over the place. Nice work !!!! ::BigGun::

Oh and don't you just love it when they ask what it will take to settle this, like the case has already been decided and they've won, and you just throw a dismissal or you pay me for suing me and violating my rights right back at them. That look is priceless is it not?

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Wow, I hope everybody that actually goes to court really reads closely how you handled yourself in court. Now that's how it's done !! That was so very smart of you to read the judge and take the hints. Also the short and right to the point answers, you're right, you really confused the other side.

That is similar to what I did. I admitted things that the other side was just speechless and in no way prepared for. They ask you questions that appear to be just an absolute nightmare for your case but are irrelevant. Then when you answer honestly they have no rebuttal and they stand their looking like a stooge in front of the judge.

Nice job knowing when to shut up when you were winning. Also it sounds like you did not get into the stock b.s. answers when you were on the stand. I agree about the objection to asking you a second time, but on the flip side it made the other side look desperate.

You really just kicked their a&#036;&#036; all over the place. Nice work !!!! ::BigGun::

Oh and don't you just love it when they ask what it will take to settle this, like the case has already been decided and they've won, and you just throw a dismissal or you pay me for suing me and violating my rights right back at them. That look is priceless is it not?

The judge started off by asking the lawyer if he had seen the MIL. The way he did it was to say "have you seen that you have no case sir?" Then when the lawyer wanted to drag it out by taking me to the stand I think that really ticked the judge off since the case was clearly over. He asked the lawyer twice if he still wanted to call me to the stand as if to say "it's really not going to help". I really think that's why the judge cut the trial short. He was sick of the BS and was done dealing with the lawyer. He might have even been taking away the option to dismiss with out prejudice.

Edited by ASTMedic

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Pro pers and don't know this. So I say do what you can object and if the judge says you can't object then ask how we can object .

The only thing I would have done different is that when the lawyer asked about medication the 2nd time, I would have said "Objection, the witness has already answered the question!". As a pro se, you are still your own lawyer and can object to any question that is objectionable.

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Pro pers and don't know this. So I say do what you can object and if the judge says you can't object then ask how we can object .

I think by keeping my cool he was far more insulted. I knew I had him by the balls and he knew it too but he just couldn't let it go.

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They sent this rent a lawyer because they knew they were losing. You did keep your head, and realized the judge has basically ruled already.

So what color tie did you wear and where did you get the suit?

I think you have proven the point that if you dress in a court uniform then the judge will listen to your arguement so go to a place and buy a suit(3 day suit broker had a 99.00 one that I wore) and look comfortable in it. Make sure you wear it to get used to it(Take your spouse out for a night out to get used to wearing it.)(also never hurts to take your spouse out)

I am glad to have been of help in any way, because together we can stand up to these Douche Nuggets (I just made that word up feel free to include it in your non court vocabulary)

Also Your diligence payed off triple. It is getting everything on time that made it possible. The court never had to nudge you or provided advice to balance the equation. You can be proud that in this straight up fight you knocked them out.

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They sent this rent a lawyer because they knew they were losing. You did keep your head, and realized the judge has basically ruled already.

So what color tie did you wear and where did you get the suit?

I think you have proven the point that if you dress in a court uniform then the judge will listen to your arguement so go to a place and buy a suit(3 day suit broker had a 99.00 one that I wore) and look comfortable in it. Make sure you wear it to get used to it(Take your spouse out for a night out to get used to wearing it.)(also never hurts to take your spouse out)

I am glad to have been of help in any way, because together we can stand up to these Douche Nuggets (I just made that word up feel free to include it in your non court vocabulary)

Also Your diligence payed off triple. It is getting everything on time that made it possible. The court never had to nudge you or provided advice to balance the equation. You can be proud that in this straight up fight you knocked them out.

I'm used to wearing a suit on occasion but I bought a new one for the trial. I went with a black suit, gunmetal grey shirt and a blue/silver/white striped tie. I figured the dark colors had a more powerful look. I polished my shoes with parade gloss polish to give a nice shine and put on my man jewelry, my Citizen watch.

Over the years I have had more than a few interviews for firefighter jobs before settling on being a medic. I am very composed under pressure since I work with it everyday, granted this was a new stress so it was a bit harder. While the clerk was swearing me in for my testimony I was aware of my hand shaking as I held it up.

Edited by ASTMedic

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I really have no words, to thank you for this posts.

At this time I am going thrugh about the same tings you did, and reding your post made my life, allot easier, and save me some money in the prosses.

Thank you, Thank you, Thank you

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It's official

Page 1

Page 2

The part about each side to bear their own costs hurts. This means cannot recover costs. I would submit a memorandum of costs anyway unless you had a fee waiver. If you did then you have to bear the service fees and everything.

a little sting ouch.

Good news no statement of decision means no reason to appeal.

Great Job.

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