How I beat Midland in California

[qbert]

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

 

Here is my Trial Brief also incorporating Target v. Rocha

Midland Trial Brief REDACTED.doc

[qbert]

oops... nevermind... dupe post

[credit2011]

Not sure if this is the right place to ask this, but I have a Midland issue. I saw on this website  a reference to this case

 

http://caselaw.findlaw.com/us-7th-circuit/1033194.html

Can someone clarify his a bit more in plain english.

 

Another comment on another board stated this "DEBTOR right to DEAL with the OC is protected" on this thread

Collection Law in California

this is the url http://www.creditinfocenter.com/community/index.php?app=core&module=search&do=search&fromMainBar=1

 

 

Can this be true?

 

[qbert]

not the right place, id start a new thread

[whalewatch]

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 :'>

[whalewatch]

Hi, I have a few questions in regards to a CCP98 I received a few days ago....I've been reading your post and it appears they haved not complied with the 3 rules to this code....

Service not 30 days, Affidavit not within 150 miles and service address is in C/O Law Office

I was wanting to no if I should still try service or just do a Notice of Judicial Notice...and a MIL

Any help would be greatly appreciated.....

[ASTMedic]

I would attempt service unless it's just flagrantly outside the 150 miles. If it's say 165 miles, ya try to serve them. If it's way outside I'd just do the notice and MIL

[whalewatch]

Thanks for the quick response, It's about 170 miles....Also in reading thru the papers in her opening statement she references her work address in Virginia for Portfolio, not really sure if that would be useful....

Lastly I have requested production from them twice registered mail and of course nothing, can that be put in my notice as well

[credit_limbo]

Midland Funding and Chase Credit Card Purchase Agreement 

It doesn't have dates or such, but can be assumed that it's the standard agreement they use.

 

http://dalie.org/wp-content/uploads/2014/02/Date-Deleted-Midland.Chase-Purchase-Agreement-Eaton-Bourgeois-2011-10549-as-is.pdf

 

if you don't want to download 15 pages long pdf use this link instead to open it in the web browser:

http://goo.gl/cBa9gr

[ASTMedic]

Just so people know, I am still alive and kicking around here. Mostly I just answer PM's from people since that goes right to my email. I have a hard time getting around to checking the board so PM's will get a response.

Hope everyone is still fighting the good fight (not that you wouldn't be) and shoot me a PM if you need anything.

[Xenophon]

Hi, i am also defending a lawsuit bought up by Midland Funidng on an Account Stated.

My Question is does the Bill of Particulars apply to Acocunt Stated?

 

Also @ASTMedic, i noticed on your treat that you send the plaintiff a Defendant's Demands for production of ducuments to Plaintiff; Did you also send Defendants Request for Admission? What about Defendants Special Inerrogatories?

 

Please advise.

[shellieh98]

@Xenophon  go to this forum "is there a lawyer in the house"  (where this thread is located) and start a new post in that forum.  You won't get many answers in this thread, as it is a thread started by astmedic.  start a new thread, and we will all jump in to help.

[debt_warrior]

Midland's infamous Form 400 aka Affidavit which they utilize as foundation to attain a Judgment by Affidavit in most court venues around the United States.  Typically, if you can successfully attack the Affidavit you can win your lawsuit.  Notwithstanding that fact, many Superior Court and lower court judges will rule against you even if as a matter of law you are entitle to judgment in your favor.

 

In those cases, the only way you can prevail normally is to appeal to the next level.  So a word to the wise, do not get discouraged.

Keep pushing to a successful completion.  Even challenge a default judgment if that occurs.

 

I'll post more on Midland later.

 

PS-Much of this also applies to the other JDB's like Portfolio or the local JDBs in your area.

MIDLAND FUNDING LLC FORM 400.pdf

[ASTMedic]

Midland's infamous Form 400 aka Affidavit which they utilize as foundation to attain a Judgment by Affidavit in most court venues around the United States.  Typically, if you can successfully attack the Affidavit you can win your lawsuit.  Notwithstanding that fact, many Superior Court and lower court judges will rule against you even if as a matter of law you are entitle to judgment in your favor.

 

In those cases, the only way you can prevail normally is to appeal to the next level.  So a word to the wise, do not get discouraged.

Keep pushing to a successful completion.  Even challenge a default judgment if that occurs.

 

I'll post more on Midland later.

 

PS-Much of this also applies to the other JDB's like Portfolio or the local JDBs in your area.

 

If they intend to use the "affidavit" then they better be ready to bring a witness and the "affidavit" better conform to CCP 2015.5. Most are not properly attacking the affidavits when they are submitted and thats why they loose.

 

(I know its an old post but some of us are slow. SO SUE ME!!!!!!!!!!!! LOL)

[debt_warrior]

If they intend to use the "affidavit" then they better be ready to bring a witness and the "affidavit" better conform to CCP 2015.5. Most are not properly attacking the affidavits when they are submitted and thats why they loose.

 

(I know its an old post but some of us are slow. SO SUE ME!!!!!!!!!!!! LOL)

 

ALL CALIFORNIA PEOPLE...read this case regarding CCP 98 and the use of subpoenas...Typically, JDBs will use Affidavit or Affidavit in Lieu of Testimony to attack you.  This will give you a good counter-attack strategy from an Appellate level case that reversed trial court.  It is Target National Bank v Rocha and can be googled at Findlaw..

 

http://caselaw.findlaw.com/ca-superior-court/1632471.html

 

Happy Hunting !

 

Maybe calawyer can answer any questions out there.

 

EVERYONE ELSE outside of California, you have to look at your civil procedures or local rules to see how to attack the affidavit.

 

No affidavit = No personal knowledge = No hearsay business records exception = No judgment [defeat JDB with attrition-encirclement-exhaustion-total war attack strategy]

 

Of course, this is NOT legal advice.  For legal advice, consult an consumer law attorney, preferably, a NACA member.

[Kyrios6879]

I just want to say Thank You!  for posting this...I came across your post 2 days before my trial with Midland(which was this morning), I felt I had a pretty strong case before seeing your documents but I was very unsure of my own ability to present my case clearly in court under all the pressure.  I was on an extended vacation and just returned last week and knew I had to cram hard for trial, I knew I had to attempt to serve a subpoena that would be undeliverable to get the s98 declaration thrown out.  So I did that the day before trial by driving from LA to San Diego and filing it with the court that same day.  I used you motion in Limine and declaration in support of it and even used your entire trial brief just subbing in my own pertinant information.  That was a major life saver having that Trial Brief because I hadn't prepared one yet and it saved me from having to argue these things in front of the judge.  The main thing for my case turned out to be that they served an amended s98 declaration only 1 week prior to trial which I put in my brief and that in turn got both s98 declations thrown out by the judge!!!  Counsel for the Plaintiff then realising he had absolutely no evidence moved for dissmissal without predjudice and I thought I had won.  The Judge then looked directly at me and says he wants to hear what I have to say about that before he rules on it.  Then he explained to me that it meant that they would be able to bring the cause against me again in the future(I remembered reading about that).  It was great cause he gave me the opportunity think for a minute and realize that I needed to request His Honor to Dissmiss with Predjudice and so thats what I did.  And it was enough for me to get the WIN!!!  JUDGEMENT IN FAVOR OF THE DEFENDANT, IN PRO PER BIIAAATCH!!!

 

Thanks Again, looking back it appears that I wouldn't have been able to get the win if I hadn't come across your post with all of your wonderful documents available for download.  FEELS AMAZING!!!

[ASTMedic]

Good to see this is still helping out

[Seadragon]

Thanks for the quick response, It's about 170 miles....Also in reading thru the papers in her opening statement she references her work address in Virginia for Portfolio, not really sure if that would be useful....

Lastly I have requested production from them twice registered mail and of course nothing, can that be put in my notice as well

Is that straight line distance aka "as the crow flies"? and looks like your going to be using Target v. Rocha and CACH v. Rodgers.

[Seadragon]

Good to see this is still helping out

The ghost of JDB future

[Butterfly Bloom]

I have a trial on Nov 6, sued by Portfolio Recovery. Only if I have read this earlier and found this website earlier. I might probably have done so much in order to win my case. But I just found this website or community 2 days ago.  

 

I just want to ask, is the Motion In Limine9MIL) and Trial Brief can still be done on my part even though my trial is in a week?

[BV80]

@

 

It would help the California members if you would start a new thread and copy and answer the questions in the following link.

 

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

[HelpingGreg]

For several days now, going into weeks, everytime I click the link for the first of three for discovery in this thread's first post, only a portion displays, then, at the bottom of the screen, this displays,

"Whoops! 

There was a problem loading more pages. Retrying..."

I leave for court settlement hearing up north in a couple of days and was told I would receive my answers "nice & neat", but now messages to that person have the pink popup with red text, "[member name] account no longer accepting messages", or somesuch.

Just kill me now!

I have nobody to blame but myself - I know all about the don't-put-your-eggs-in-one-basket rule, and still I did it.

Now, I am scrambling at the 11th hour and, as shown in the above copy & paste, the recommended examples are NOT displaying.....

HELP! Please. HELP!

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 AdmissionsResponse to Plaintiff's Request for DocsResponse 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 :'> 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.)

[DonnaPoo]

MIDLAND FUNDING DISMISSAL!!!!!!!!!!

 

Thanks to ASTMedic ‘s post and help from calawyer, RyanEX, bravoflaca2000, and the invaluable information provided by HOMELESSINCA I was able to successfully defend myself Thursday and obtained a Dismissal from MIDLAND FUNDING LLC!!!

 

   I followed the very informative steps ASTMedic posted which everyone should follow as a basic framework to work from for a defense. While every case is unique there seemed to be an underlying theme to everyone of them: If you follow basic court procedures, stick with the timeframes for each action, research the merits or issues, and scrutinize every piece of evidence MIDLAND or any other Junk Debt Buyer for that matter presents, you absolutely cannot fail. Here is my story…

 

   I was served with a Complaint for “Account Stated” by MIDLAND FUNDING and following ASTMedic’s example filed a General Denial and following others filed a Bill of Particulars and served both on MIDLAND. A hearing was scheduled by the courts which was an OSC for Dismissal for Not Bringing Default a standard procedure the Courts follow when there is a Complaint filed. The Hearing was eventually moved to another court location in another city and I believe this may be due to the court Backlog in Riverside County. Because of the line of work I'm in I know the courts are backlogged so this was understandable. Anyway, with that being said when I received the notice the hearing was moved to the new location it also stated it was for "Trial" so I began to prepare for that process.

 

   During Discovery I sent a “Meet and Confer” letter requesting additional information as ASTMedic posts suggests and MIDLAND’s Attorney responded with a letter basically declining my request and their letter stated “your objections to our discovery responses are not in good faith and meant merely as tactical gamesmanship to obtain an advantage unrelated to the merits of the complaint.” To clarify all I asked for in my “Meet and Confer” was something more substantial than just a generic agreement that specifically identified me, and/or my account as an account that they in fact purchased and owned. As ASTMedic suggests I wrote “If Plaintiff does not have a valid assignment of the account at issue in the complaint, it does not have standing to pursue its claims.”

 

   Next as ASTMedic suggested I sent MIDLAND the CCP 96 request and received the CCP98 Declaration in Lieu from MIDLAND the following week (but not as an Official Response to my CCP 96 request) so I began by picking apart MIDLAND's evidence as HOMELESSINCA suggested. For me it was not so hard, because of the type of work I do I have to pay attention to the details which is not good for MIDLAND and I made notes about each discrepancy I found. One of the things that stood out in the Dec in Lieu was that MIDLAND included a “New” Affidavit this time listing my name and my account, funny how when I asked for this in the “Meet and Confer” they would not provide it to me, right? I went through all my Discovery responses from MIDLAND (3 different times just to be sure) and I had never received this Affidavit.

 

I began to really scrutinize and pick it apart the Affidavit and this is what I found:

 

1. The Affidavit was executed by a Jane Doe (name changed for privacy purposes) but there was no date of execution basically signed but not dated odd right?

 

2. The Affidavit specifically mentions a merger of one corporate subsidiary into another on MARCH 13, 2013. There is only one reason to mention such a merger in the affidavit which is to indicate that the Affidavit is being produced and executed on or after such merger. This begs the question, why would an “Original Creditor” provide such an affidavit a full 6 months or more after MIDLAND FUNDING claims to have purchased the account from the "Original Creditor" and now owns it?

 

3. The next problem with the Affidavit and the most telling was the Notaries date of execution, one could not tell if it was 2010, 2011, or 2014 it was very indistinct.

 

   As a former Notary myself I know these things are never indistinct…so I research the Notaries Commission and the 1^st or Original Commission was not valid until 07/2012 so anything that may have the Notary Stamp or signature is not valid prior to that time. The Notary could not have notarized anything prior to their original Commission in 07/2012, and the purpose of the Notary is to witness the signature of the person signing the document and the date of execution for the Notary must be the same date they witnessed the signing of the document, here neither of which was clear.

 

   However the Affidavit itself could not have been executed until sometime on or after MARCH 13. 2013 as it specifically mentions the date of the merger which is a full 6 months or more after MIDLAND allegedly purchased the account in 09/2012. (It should be noted that my specific information appeared to be inserted into the document like it was pulled from another source and not hard coded.)

 

   I work in the legal field and with attorneys although it is in a different field, I wanted a little insight into the tactics attorneys use from another attorney so I asked one about “unfair gamesmanship” and a strategy on the new Affidavit, I wanted know if I would file a specific motion to exclude the new Affidavit that was never provided during Discovery even after I requested more from MIDLAND in the “Meet and Confer” or would I just include it in the Trial Brief and NOM in Limine?  As he explained every attorney accuses the other of “unfair gamesmanship” and it’s a tactic regularly used when one may have the upper hand however the one using the term will not think twice about using “unfair gamesmanship” if it will give them an edge in their case! I was told that it could be put both in the Trial Brief and the NOM in Limine an argument that not providing the Affidavit during Discovery unfairly prejudices me from providing a defense to the Affidavit. A specific motion could be filed but if it was addressed in the Trial Brief and NOM in Limine it would really not be needed. So I just decided to attack the Affidavit in both the Trial Brief and the NOM in Limine then. For my Trial Brief I followed examples from ASTMedic and HOMELESSINCA...taking a little from both.

 

   Next as ASTMedic suggests I Subpoenaed the Declarant of the Dec in Lieu from MIDLAND, there were about 7 addresses provided and the funny thing only 3 addresses was within the prerequisite 150 miles of the court, 2 in San Diego and 1 in Commerce CA.

 

   I went on the NAPPS website which is a registry of Process Servers and requested quotes. I chose the one closes to MIDLAND in San Diego which also had an office on the same street as MIDLAND's Camino Del Rio location. I told the process server I wanted service attempted at both the San Diego locations and sent him the subpoena. Now here is the interesting thing, as it turned out the process server does service for a Legal Office that is actually a Consumer Protection type of Law Firm and he asked me where did I get the name of the Declarant from because he serves MIDLAND FUNDING all the time for his client and had never heard of this Declarant…so I told him it was from the Dec. in Lieu and I sent him a copy. I told him I figured he would be familiar with MIDLAND FUNDING being in his line of work and that they were right down the street from him.

 

    I gave the process server specific instructions that the Declarant must be served personally the only exception is if an individual identified themselves as Council for the Declarant he could then serve that person but would need Council’s full name etc…. the process server had mentioned that whenever he serves the subpoenas for his client he always just left it with the Paralegals at the location could he just do that? I responded no, his client is a big Law Firm and one Law Firm against another can afford to excuse some procedures whereas I as an individual who does not have unlimited resources cannot, with that he understood.

 

   In the following 2 weeks I went about prepping the Trial Brief and NOM in Limine, both were done with the presumption that the Declarant could not be served and imagine my surprise when the process server told me he was able to successfully serve the Declarant at the first address he tried which was at 8875 Aero Drive, STE 200, San Diego, CA. He told me the funny thing about it was that before me he had not been able to serve anyone at that location for the last 3 years and was surprised himself when the Declarant was there and he served him, yeah lucky me huh?

 

   Anyway for the next 3 days or so I had to totally edit my Trial Brief and NOM in Limine and go with a new strategy removing all references to being unable to serve the Declarant and get ready to possibly have to Cross Examine the Declarant at court. A week before Trial I got my docs ready and Fed Ex’d a copy to MIDLAND FUNDING and I went to file with the courts but due to rules of the courts could not file them was told they had to be provided to the Judge the day of the hearing because they were trial docs. I found this to be a little disconcerting because did not think the Judge would have time to review the issues during the hearing this was a 40 page Trial Brief, a 20 page Declaration, 14 page NOM in Limine, and a another 20 page Declaration in support of NOM in Limine….but I figured will just see what happens on the day of I guess.

 

    Following ASTMedics suggestion the night before court I slept and got up Thursday morning and prepared for war. I chose my favorite power suit and got in the zone. Got to court and checked in and waited and waited. Finally court is in session and all parties in “Collections Cases” were told to go to mediation to see if issues could be settled prior to hearing, and my case was told to meet with the Mediator. Here is where it gets interesting, the mediator calls me and I answer but no Council for MIDLAND responds after a beat I ask how long does the judge usually give Council not present before he decides to dismiss? The mediator answered that Council for MIDLAND was there but had several cases he was handling and was meeting with other Defendants and would be meeting with us as soon as they were finished. Fair enough so we proceeded to the Mediation room where he explained the purpose of Mediation and the effects of a possible judgment against me I politely listened and did not interrupt even though I know all about judgments and their effects.

 

   The mediator asked me what type of case it was while trying to look it up and I told him “Account Stated” and he responded it sounds like you understand the case. Then he was looking for the Collections Case Management Form which is a form the courts require you bring with you for this type of hearing, I had my copy already filled out and signed and gave it to him. He noted that the amount the Plaintiff was blank and I explained the reason why it was blank was because their Complaint listed one amount but their Declaration in Lieu lists another and due to the confusion just left it blank and figured it would have been written in at some point, he said makes sense. 

 

   So here is the funny part and looking back on it now I’m pretty sure it may have come off as being a smart a$$ but really I was very serious. The mediator tells me that we have to show the Judge that we have made a good faith effort to negotiate and what type of offer did I want to make? A couple hundred? A thousand? What did I reasonably want to pay? Now the clock in the room was very wrong it was showing 3:15 but I knew it was only about 9am so I looked at him and I asked him what time it was? He said it was 9:03am, so I thought to myself I have 2 dollars left before I have to put it in the parking meter outside. I said to the mediator "well I have 2 dollars and Council has about 50 minutes to decide if he wants to take it before I put it in the parking meter outside so that’s my offer." The mediator looked at me kinda surprised and then he smirked and said “well guess you got to start somewhere right?” I then asked "by the way, I subpoenaed their Declarant would you know if they are here also?" The mediator responded that he didn't and with that he left saying he would take my offer to Council.

 

   The mediator was back after about 5 – 10 minutes or so, saying yeah Council is not accepting the offer so I just basically shrugged. He sat down and asked “aren’t you concerned that a judgment will be entered against you?” I said not really because the evidence is very poor. The mediator then asked “how are you so sure?” I told him because I have done my research and confident I have a defense. The mediator asked “what if you’re wrong and you lose?” I said well that is an eventually I am prepared for and if I do so be it, but it will not be without a fight.

 

     With that said I told the mediator I want you to look at something to see why I feel the way I do and I pulled out the infamous “Asset Sale Agreement-Attachment 2 Bill of Sale” and gave it to him and told him to read it. After a minute, I asked him “do you see my name or an account number anywhere within the document?” He said no, and then he went back to where it mentions the infamous “Appendix1” and asked “what if Council has this Appendix1 with him today?” I said “I sincerely hope he does, and once examined it has my name and account listed, but I doubt very seriously Council has this mysterious Appendix1.” The mediator asked “well do you think their lying?” I said no I don’t think that, but what they are doing is taking a bunch of unrelated junk that really does not prove anything, manipulating information and presenting it to the courts as evidence when it isn’t. I went on to explain what they rely on is the backlog of the courts who does not have the time to scrutinize every document they present and a defendant who is not sophisticated enough to know how to defend themselves against it. I am not an attorney and have not attended law school but unfortunately for MIDLAND my job which is in the legal field requires me to pay attention to the details and I cannot allow them to do this without a defense.

 

     Finally the mediator looked at me and said “well what do you hope to do today?” I looked at him and I said go before the Judge and present a defense. He said “are you sure this is what you want?” I told him “do you see this Binder (it was my trial Binder which was about 4 inches thick), do you see this Trial Brief and this motion” (I was waiving them at him) I have done my research, I have prepared for this day, and I am fully ready to litigate this matter. The mediator then said “before I go do you have one more offer for me to take to Plaintiff?” I looked at him and said “I have a 5 dollar bill and Council still has about maybe 30 minutes before the offer goes away” I was completely serious because I was fired up and wasn’t trying to be a smart a$$ at all, and I had on my power suit, I am woman hear me roar!!.

 

   The mediator left and returned after about 5 minutes and said “ok come with me going to let the clerk know there was no settlement and matter will go before the judge”. The funny part I never met with MIDLANDS Council during the mediation process, so did not know who he/she was or what they looked like. I sat and waited for my case to come up. While waiting for my case to be called there was an attorney that handled 3 cases back to back prior to mine being called and I watched and listened to the court enter large judgments against Defendants just by the Dec in Lieu that was presented. I felt really bad for them because they were all clueless as to what was going on and so had no defense.

 

    One defendant requested the courts to continue the matter because he “was going to” file for bankruptcy but Council stated to the court there was no need to continue the case they were ready to go forward with the case today and the court agreed because the Defendant had not filed and could not continue based on the Defendant possibly filling bankruptcy which was understandable. This same attorney representing 2 different Plaintiff’s obtained 2 judgments against this same Defendant back to back for a grand total of $18k!!!

 

    Then my case was called and the same attorney stayed there and before I could walk up to the Defendants table, identify myself, and set my Binder down on the table, the attorney said “this one your honor we are just going to move for Dismissal without Prejudice today”. The judge looked at me and then he looked at the attorney and said “really” and the attorney said “yes, your honor we would like to Dismiss”. The judge looked at me and simply said “thank you for coming in today”, clearly I could see the curiosity on his face as to why the attorney requested a Dismissal on my case when he just went so hard on all the cases before mine?

 

     With that I excused myself from the court room. On the way out in the hall I saw one of the other mediators and asked “where was the mediator I had met with?” He said he was with someone but could get him if I needed, I said no there was no need but requested that he gave the mediator a message that the lady he met with earlier the one with the Pinstripe suit “Dismissal!!” he said “congratulations!” with complete surprise.

 

    Needless to say I was so syked and excited even though I had taken the whole day off from work I went in to work. It has taken me a couple days to regroup and process the experience and then another to write about it. I am not very much of a writer so please forgive me if I may have left something out or transitioned from one topic to the other that is not smooth. I am open to answering any questions you may have and if requested will provide copies of the Brief and NOM in Limine that I so tireless labored and fretted over and never had the chance to use. Funny now looking back on it I spent about 2 months of weekends writing, researching, and formulating arguments I felt like I was back in college again writing a Thesis or Research Paper only instead of earning a grade I was defending myself against this crappy lawsuit that could have cost me a few thousand dollars.

 

     I decided to write this story because unlike many others did not post daily in the forum or submitted continuous status updates on my case that readers could follow but I really wanted to share with others the outcome because I know it could not have happened without the valuable contribution of every one of the members on here and you deserve to know that you have helped someone every time we successfully beat MIDLAND FUNDING LLC or any other Junk Debt Buyer at their own game.

 

For that I am truly grateful. Thanks guys!!!!

 

DonnaPoo

[HelpingGreg]

@DonnaPoo

The highest of 5s on your awesome victory!

Has it been filed?

Do you & they return to court in 6 weeks, or so?

What is the statute of limitations; can they re-file before it runs?

Can you still turn in the paper asking for "with prejudice"?

Please, may we know why you decided to accept without prejudice?

Happiest of times to you! Happiness & Satisfaction well-earned!

Warmly,

[DonnaPoo]

Posted Today, 04:14 AM

 

@DonnaPoo

The highest of 5s on your awesome victory!

Has it been filed?

Do you & they return to court in 6 weeks, or so?

What is the statute of limitations; can they re-file before it runs?

Can you still turn in the paper asking for "with prejudice"?

Please, may we know why you decided to accept without prejudice?

Happiest of times to you! Happiness & Satisfaction well-earned!

Warmly,

 

Thank you, Thank you.

 

Will try to answer your questions one at a time...

 

~~As of Friday the Dismissal had not been filed with the courts yet and will probably showed filed in the courts next week or so.

 

~~As far as I know there is no returning to court in 6 weeks or any future hearing date once the action is dismissed the courts usually doesn't schedule a future hearing at least not in Riverside County unless it's for some other matter unrelated to the original complaint.

 

~~I believe statue of limitations run out in 2016 and sure they can re-file until then but I doubt they will. If they do I will just update the legals I never had a chance to use and we start all over.

 

~~I don't believe I can turn in my legals and request a new Dismissal w/Prejudice. It all happened so quickly while I thought about requesting the court to enter w/Prejudice before I could say anything as soon the judge thanked me for coming in he asked the clerk for the next case and they off to another case. Honestly just really glad to get out of there.