ASTMedic

How I beat Midland in California

132 posts in this topic

On 4/2/2018 at 6:31 PM, WT COLLECTOR said:

I see. I still have my doubts that they will produce an actual list showing ownership of any particular account from a large debt purchase. Perhaps that's wishful thinking on my part. Regardless, there are still rules for affidavits that must be followed correctly to enter them into evidence. My contention is that they didn't provide anything in the complaint to substantiate their ownership claim. They didn't include a bill of sale or assignment just a printout of the original account actions at time of last activity (in this case an Amazon bill). That still doesn't prove they own it.  But then again they might just have that we'll see. 

In CA, a plaintiff doesn't have to attach those items to the complaint. However a plaintiff should have most of those items as CA law changed a few years ago and now requires that they have them before filing a lawsuit.

However (as you noted), CA still sets a high bar for getting those items admitted into evidence at trial - that has not changed. If you know the rules & procedures (and follow them!) and object properly, an affidavit or bill of sale (or any other item a plaintiff produces) can't be admitted into evidence unless properly authenticated - meaning they have to produce a live and qualified witness from the original creditor and any other creditor/collector that has owned the debt.

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Just to let you all know about my experience. I pretty much did step-by-step what ASTMedic said to do.  My trial with Midland was scheduled for next week.  I was ready and prepared for it with all the help and tips provided with his experience with Midland.  Midland sent a request for Dismissal-no ADR yesterday.  I called the courthouse to confirm and the trial was vacated.  Victory!  I feel like I won the lottery.

All thanks to you, ASTMedic!!  Thanks so much for documenting your experience with Midland.  It really helped me when I didn't even know how to begin or what to do.

To everyone else going through this, you can do it too!  Don't give up.  It is alot of work.  Alot of reading and research on the internet.  Just watch your timeline to make sure things get sent in a timely manner. Good luck !

Thanks to everyone giving their input and advice on this forum. It helped me so much to know I could come here and get the answers and information I needed.

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On 10/19/2012 at 4:59 PM, ASTMedic said:

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.)

On the general denial form did you least zero affirmative defenses? Also did you just check box 3a..or did you deny each paragraph...mine is due by Friday and they are suing for a debt outside the SOL and I have proof but for now what to get the denial filed asap....

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On 10/8/2018 at 1:45 PM, collegesoccercoach said:

On the general denial form did you least zero affirmative defenses? Also did you just check box 3a..or did you deny each paragraph...mine is due by Friday and they are suing for a debt outside the SOL and I have proof but for now what to get the denial filed asap....

he used a general denial http://www.courts.ca.gov/documents/pld050.pdf  because the complaint was not verified. there is no Box 3a on a general denial. if the debt is outside of SOL, do state SOL as an affirmative defense. 

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I just wanted you to know how relieved I was to find this form! I'm going into battle with Midland funding over 8K credit card debt and was having so much trouble figuring out how to do this myself, until I stumbled onto this form.  I can't thank you enough for posting  your story and even giving the steps and forms to help people like me along. Thank you, thank you, thank you!

I already have questions and I'm not sure if I should start a new form or just keep building on this one?  I'll start here and I apologize if I was supposed to start a new form.

I have about 10 days to file my answer and I'm going to file that PLD-050, to start things off.  My first question is this. They did attach a bill of sale to the summons, but it said that Midland purchased the debt from Bank B.  They further explained that they purchased a "batch" of written off debt on a  specific date a few years ago. But they said nothing about my account or my name being specifically purchased.  QUESTION: as that bill of sale a valid assignment of the debt? I was thinking one of my alternative defenses would be that the plaintiff is not a valid assignee, and thus lacks standing to sue.  Does that sound like a reasonable alternative defense?

The other interesting thing is that the original lender/financer of this credit card was Bank A.  This is where the bulk of my charges were accrued, not Bank B. Not once in any of the evidence submitted in the summons doesn't mention Bank A.  I called Bank B just to confirm and they stated that indeed my credit card was initially financed through Bank A (that's where I signed the agreement) and then transferred over to Bank B a few years after I had been dealing with Bank A.

QUESTION: is that going to be a problem for Midland? And should I keep that information to myself and spring it on them as we get closer to trial? I tried to ask for a copy of my original billing statement in the contract I signed, but they said I would have to request that in writing. Is that something I should try to get?

Again, thank you all so very much for maintaining this form! I think I'm going to sleep halfway decent tonight for the first time since I've been served.

 

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45 minutes ago, Lady Bug said:

I just wanted you to know how relieved I was to find this form! I'm going into battle with Midland funding over 8K credit card debt and was having so much trouble figuring out how to do this myself, until I stumbled onto this form.  I can't thank you enough for posting  your story and even giving the steps and forms to help people like me along. Thank you, thank you, thank you!

I already have questions and I'm not sure if I should start a new form or just keep building on this one?  I'll start here and I apologize if I was supposed to start a new form.

I have about 10 days to file my answer and I'm going to file that PLD-050, to start things off.  My first question is this. They did attach a bill of sale to the summons, but it said that Midland purchased the debt from Bank B.  They further explained that they purchased a "batch" of written off debt on a  specific date a few years ago. But they said nothing about my account or my name being specifically purchased.  QUESTION: as that bill of sale a valid assignment of the debt? I was thinking one of my alternative defenses would be that the plaintiff is not a valid assignee, and thus lacks standing to sue.  Does that sound like a reasonable alternative defense?

The other interesting thing is that the original lender/financer of this credit card was Bank A.  This is where the bulk of my charges were accrued, not Bank B. Not once in any of the evidence submitted in the summons doesn't mention Bank A.  I called Bank B just to confirm and they stated that indeed my credit card was initially financed through Bank A (that's where I signed the agreement) and then transferred over to Bank B a few years after I had been dealing with Bank A.

QUESTION: is that going to be a problem for Midland? And should I keep that information to myself and spring it on them as we get closer to trial? I tried to ask for a copy of my original billing statement in the contract I signed, but they said I would have to request that in writing. Is that something I should try to get?

Again, thank you all so very much for maintaining this form! I think I'm going to sleep halfway decent tonight for the first time since I've been served.

EDIT: FYI: just in case you are wondering why I had such a large debt: I ended up having a brain tumor and had/still do really bad medical insurance. It's a long story, but I've always had good credit until these health problems started running up astronomical bills.  It's under control now, but I still have a lot of medical bills each year. Eventually I'm probably going to have to file bankruptcy, but because I own a home with a lot of equity in it, only chapter 13 as an option. Anyway, sorry for the ramble, but I didn't want the form to think I was completely irresponsible and one of those.... kind. :-)

You're welcome. Start a new thread and people will give you a hand. Kick some butt!

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Okay, Great!  Thanks again for your extraordinary generosity!

I do have one question for you, if you don't mind.  You said this in your very first post on this thread:

<<<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.>>>

Unfortunately, when I click on that link it just takes me to the page that lists all the different forms. I've looked for the thread but I'm not sure which one you're talking about. Is there a way you could point me to that thread, for I'm definitely following in your footsteps on this case and would like to read it.

Thank you so very much!

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