blue devil

Midland using Erica Brachfeld to sue for collection of Chase account

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I am new to this Forum and am very impressed with the responses I've seen so far.

Here is the situation:

My adult son is being sued by Midland (MCM), represented by Erica Brachfeld in the Los Angeles area. He has filed an Answer and trial is set for 12/17/12. He recently received an "Affidavit in Lieu of Testimony" signed by a Jacquelynn Doucette wherein she admits that "the original instrument creating the account was not provided to MCM and, upon information and belief, is unavailable." The affidavit is accompanied by a letter from Chase saying they sold the account to MCM and includes a couple of billing statements.

Bottom line, can MCM's standing on this be succesfully challenged?

Thanks for any help you can offer.

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Yes - if it's a CCP 98 declaration, they must provide an address within 150 miles of the courthouse where the affiant can be served personally.

You will send a subpoena over to that address using a process server - I will bet that she won't be there. Make a couple of attempts to serve and then file a motion to have the declaration precluded.

You may want to send a BOP today or tomorrow!

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Thanks. No where on the Affidavit does it cite it being a CCP 98 declaration. Also, she says she agrees to accept service at one of five addresses that are within the 150 radius of the court. Do either of these items mean it doesn't fall under CCP 98? Do I need to hire a licensed process server?

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It probably was... especially given that there are 5 addresses.

Anyways - fill out a SUPB-002 form and have the court clerk sign it. And yes you will need either a licensed process server or a peace officer attempt to serve (like a deputy sheriff).

Per CCP98, there can only be 1 address to be served - 5 violates right off the bat.

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1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

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

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

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

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

11. What is the SOL on the debt?

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

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are.Common counts,account stated,breach of contract,money lent ect. Please post what they are claiming,This will help in what type of defense is needed. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

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

Edited by racecar
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In working on my BOP, I came accross this:

"Even though the code authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677."

The Complaint (which was not verified) had a First Cause of Action attached. It says, in part, "

Within the last four years

(1) on an open book account for money due.

(2) because an account was stated in writing by and between plaintiff and/or Plaintiff's assignor and defendant in which it was agreed that defendant was indebted to plaintiff and/or Plaintiff's assignor.

My question is: Is this a book account or an account stated? Can it be both?

Is the Plaintiff required to send me a BOP? We just received the Plaintiff' s Trial Brief. Does this serve as their BOP?

BTW, I have located a Statement in Lieu of Testimony signed by Doucette some 15 days before she signed the one we received. A 4 year old can identify the distinct differences.

Thanks for your help

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So I take it a BOP would be appropriate. I'm still searching for a sample to follow.

In my answer to their request for witnesses/evidence, should I mention the fact that I have found what appear to be falsified Affivdavits in Lieu of Testimony filed by Doucette? Or should I reserve that for impeachment in the event she appears pursuant to a subpoena I intend to sever on her?

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OK. We will attempt subpoena service on this Friday. Son just received Midland's Trial Brief. Is my son required to file one, too? Trial is set for 12/17/2012. Hope we haven't missed a deadline. Also, any pointers on what should/ should not go in his brief? We are going to try to establish that Midland does not have standing.

Thanks

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One last item. When the original summons was delivered it dropped at my wife's feet at our residence - my son does live with us. The process server did not asked for my wife's name after she told him our son was not home. Nevertheless, the server submitted a declaration of service with the court and made up a name for my wife. Can we note this to the court? if so, when and how? Does it even matter or serve of any benefit to us?

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OK, we filed the Case summary and will file in Limine docs. on Monday. I attempted subpoena service on affiant and to no surprise she was not at location. Any idea what form I use to make my declaration regarding my attempts to serve the subpoens? This is Los Angeles Superior Court - I found a MC-303 form which is a general declaration form. Will this work?

Thanks

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OK. Attempted subpoena service - surprise she wan't there.  Filed MIL docs and declaration regarding subpoena service attempt with Clerk on Monday.  Mailed copies to Midland atty.  Did not include a copy of the subpoena. 

Also, received a certified copy of an Affidavit filed in Arkansas court allegedly signed by Doucette that bears a very different signature.  Any guidance as to how we handle this?  Should I provide it to Midland Atty to push them toward dismissal?  File with Court or wait until trial (12/17/12)?  Thanks for all your help.

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