ASTMedic

How I beat Midland in California

132 posts in this topic

Q for ASTMedic and others:

it seems your discovery request was really short and sweet. I've seen others go the complete opposite direction (see post #14 in this thread)

thoughts on these differing strategies?

Well the odds of them responding with any real evidence is slim to none no matter how you ask. Mostly they will just object. So then if you choose to press them for more you will have to file a MTC. In that you will have to list each request you made, their response and why further responses are needed. So if you ask for 10 items and they object to 7-8 you will have to write out each of those. By only making 3 requests that get right to the meat of the matter you limit your work.

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In the CMR, is it best to ask for a jury trial?

Also, I'm sending out my demand for bill of particulars tomorrow. They have to go by cert mailed with return receipt, right?

What's my next step?

Send everything CMRRR for proof they got it. Some say do a jury trial, I didn't and did just fine.

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Why did both parties have to bear their own costs?

 

I thought (in general, that) the loser paid the winner's costs as a matter of course.

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You have to file a request separately, I think.  

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Hello ASTmedic, if you can could you check out my thread and give me any feedback?

Thank you for your time. Your post on Midland is great!

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@ASTMedic I was referred to your thread by the awesome people that's currently helping me in my discovery process question & I must say you are such a life saver, posting step by step on what needs to be done in the lawsuit process especially for us newbies to the lawsuit process. Thank you so much for posting this. I'm fighting cavalry & winn law group. Scums of the earth I tell you. Thanks again for your detailed thread!

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@ASTMedic I was referred to your thread by the awesome people that's currently helping me in my discovery process question & I must say you are such a life saver, posting step by step on what needs to be done in the lawsuit process especially for us newbies to the lawsuit process. Thank you so much for posting this. I'm fighting cavalry & winn law group. Scums of the earth I tell you. Thanks again for your detailed thread!

You're very welcome. It's the least I could do to pay back all the help I got from here.

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midland dismissed with prejudice before trial today.

 

thanks to ASTMedic as i basically followed his advice to the letter, with the addition of the target v. rocha special sauce that didnt exist when his case was heard.

 

also huge thanks to CAlawyer, seadragon, AnonAmos, racecar and others

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Hi Great piece here, million thanks,...and I have a few questions:

 

1. when is the deadline for CCP 96? I am also from california, los angeles to be exact.

 

2. "The key here is to subpoena the witness that is listed on the CCP 98 at the closest address to the court" .....

What do you mean by the closest address to the court ?

 

3. "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.)"

 

-Personal service...means ?

 

-The subpoena must be sent to the person who did the bill of sale/ assignment or affidavit? Cannot be sent to plaintiff 's attorney office ?? If so, how do I find out the address of that person ??

 

-what to be include and what brief and what is MIL ????

 

-what do you mean they will side step service was not available ????

 

3. "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."

 

-at the address given-- how do we get the witness's address? when the plaintiff 's attorney mentioned all request must be done thru them? I don't think they will provide the witness's address, right ?

 

-who gave you 5 address ?

 

"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."

 

-What is MIL ?

-that serving a "witness" in San Diego would no longer be economical litigation??

 

-Did you file motion of Limine because the address of the witness was more than 150 miles away and you did not send the subpoena to plaintiff's attorney address?

 

-what's ccp 1987 ?

 

Million thanks

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CCP 1987 - Sorry but you need to look it up. Not being an a$$ but you need to know in case you need to use it.

Ok the address for the witness is listed on the CCP 98 affidavit. They may list one or many, however it's only supposed to be one. That address is supposed to be NO MORE than 150 miles from the court where trial is taking place. In my case they listed 5 address but only one was inside 150 miles. I think that covers a few of the questions.

MIL = Motion in Limine

Yes for ME (due to distance) serving the subpeona on the attorney in San Deigo is potentially expensive and the point of these laws it to keep the costs to a minimum so you can afford to defend yourself.

The reason the attorney argued I should have subpoenaed the witness through them is that they wanted to try and control the situation. It doesn't work like that though. The service of the witness can't be done through someone else. Thus my statement about personal service.

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I hope I can say those words I beat Midland, but so far Ive been sending what I have read in the forum recently I got their response for BOP and says as follow,

THE PLAINTIFF OBJECTS TO DEFENDANTS BOP ON THE GROUNDS THAT BOP IS NOT APPROPIATE IN AN ACTION ON AN ACCOUNT STATED, BECAUSE AN ACCOUNT STATED IS DEEMED TO MERGE  THE VARIOUS ITEMS ON WHICH THE EARLIER ACCOUNTS WERE BASED.

PLAINTIFF COMPLAINT ALLEGES ACCOUNT STATED AS THEIR CASE OF ACTION. AS SUCH IT IS PLAINTIFFS POSITION A BOP IN INAPPLICABLE TO PLAINTIFFS CASE OF ACTION.  WITHOUT WAIVING ITS OBJECTION PLAINTIFF MFLLC ....

I got from them a bunch of statements, legal notification correspondence and a bill of sale.

what else can we do or respond send to MFLLC , on top of that PORTFOLIO RECOVERY just sued me and I have to file an answer.

PLEASE HELP US

  I have sent the BOP and they object to it, can I send them now the POD is that a good idea?

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surprised nobody has answered this in 3 weeks but yes BOP is not applicable in Account Stated. You need to skip right to full discovery like in ASTMedics (and also my) case against midland.

 

no biggie, youre not a lawyer, it wont hurt your case, just get discovery out ASAP

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surprised nobody has answered this in 3 weeks

Nobody expects any questions to come out of this thread; I usually send people to it for answers (and document examples).

 

Good looking out on your part however.

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surprised nobody has answered this in 3 weeks but yes BOP is not applicable in Account Stated. You need to skip right to full discovery like in ASTMedics (and also my) case against midland.

 

no biggie, youre not a lawyer, it wont hurt your case, just get discovery out ASAP

Whoops. Haven't been on in the past few weeks.

This was why I directed people to send a PM if needed. I get and answer plenty of those.

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It seems Target v. rocha is going to tide us over until the new law takes effect on cases filed by debt collectors.

well remember thats only for debts SOLD after the new year.

 

same same if they acquired the debt before 12/31

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Attached is my MIL and declaration i used to beat Midland. It is a combination of ASTMedic's and HomelessinCalifornia's MILs. My case was almost exactly the same as ASTMedic's but this MIL is updated to include Target v. Rocha

MIDLAND MIL.zip

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