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StinaLinh

Being Sued by Midland Funding, LLC

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I'm in California and being sued by Midland Funding for about $2,000 for an old credit card I had with WaMU.

I filed an answer to the complaint with the courts and also sent a demand for BOP, with the help of these forums.

Exactly ten days have they received the demand, they sent me a BOP that only consisted of old statements from Chase.

and now, I'm not sure what to do.

This is the first time I've dealt with anything like this and cannot afford an attorney.

Thanks for all the feedback and help.

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Calawyer is the best there is from your state. Calling Calawyer!

Were the documents authenticated by Wamu or Chase? If not, they're inadmissible anyway.

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Do the statements cover the life of the account?

Also do the statements have the WaMu logo or the Chase logo?

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The statements have the Chase logo on them, and they do not cover the entire life of the account. There are only 2 years worth of statements.

The statements look like they were printed from the internet and/or faxed.

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OK - so the response to the BOP is deficient... you will need to send the attorney a meet and confer letter (on regular paper) and let them know that the BOP requires the entire account be itemized. Give them 10 extra calender days to itemize all the activity or you will file a motion to compel a further response, or alternatively, preclude them from introducing further evidence at trial.

///

Save the logo thing for later - this is going to show that the records were tainted...

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Thanks 1stStep. I will start a Meet and Confer letter.

Now, do I have to provide a proof of service for that, and/or file that with the courts?

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Follow 1stStep's instruction and below is a sample Meet and Confer letter that Calawyer posted. Use it as a guide and modify to fit your case.

Study Aqui's case

here's the link

http://www.creditinfocenter.com/forums/there-lawyer-house/307597-objection-bop.html

If you do move to MTC process, the link provide you with good information to move forward.

From Calawyer:

It is best to meet and confer in writing. Then, when you file a motion with the court you can simply attach the letter to your affidavit instead of explaining what everyone said on a phone call. Although there is no explicit meet and confer requirement in CCP 454, the Courts are accustomed to seeing them in discovery motions and will appreciate the effort to informally resolve the matter. Here is a letter I drafter for someone a ferw weeks ago. Modify as appropriate:

On ____, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof." As described below, plaintiffs’ response is entirely deficient.

As a preliminary matter, plaintiff’s objection to Defendant’s Bill of Particulars is not well taken. Plaintiff has alleged a cause of action for Open Book Account. A Bill of Particulars is appropriate under this legal theory as plaintiff concedes in ultimately responding.

The response served, however is not sufficient. Plaintiff has not provided an itemization of the account showing all charges and credits thereto. It has not provided the underlying contract referred to in the complaint. Nor has it provided any contract of assignment of the claim at issue in this litigation. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit. Indeed, the only account statements plaintiff has provided demonstrate full payment of the amounts requested.

Please serve a full response on or before [insert date 10 days from date of letter]. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial.

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Look on your complaint and see if the causes of action is one of the following: Open Book, Breach of Contract, Account Stated etc..

they most likely will object on the grounds that they don't have to on Account Stated. Which is true, however, if there are other causes of action then it is not true, you are entitled to all statements itemizing from 0 bal to the amount they are claiming damages.

Midland is beatable look at my thread (for Midland) and SkippieB. We both won and within 4 mos.

If you haven't already done so, look at this link California Civil Jury Instructions and look up your causes of action and look at what JDB has to prove...http://www.courts.ca.gov/partners/documents/2011_Edition.pdf

Welcome btw...

Edited by helpme

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Hunt and Henriques just sent me a letter in response to the Meet and Confer letter I had sent. They pretty much stated that they disagree with my contentions.

They state that the BOP provided serves as more than enough documentation to appraise me of Plaintiff's claim. And that the statements show my name, address, account number, and amount due, They feel that this is certainly sufficient to appraise me of their claim.

They also state that they will not provide any assignment documents in response.

Also they state that the Plaintiff has sought recovery on several grounds including account stated in this action. No BOP may me demanded in an action of an account stated and that in the "unlikely event" that I prevail on any motion to exclude, such evidence may not be excluded in the account stated cause of action.

Lastly, they want me to call and discuss the settlement of this matter.

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'A book account may be deemed to furnish the foundation for a suit in assumpsit . . . only when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.' . . . 'The term "account," . . . clearly requires the recording of sufficient information regarding the transaction involved in the suit, from which the debits and credits of the respective parties may be determined, so as to permit the striking of a balance to ascertain what sum, if any, is due to the claimant.' " (Robin v. Smith (1955) 132 Cal.App.2d 288, 291 [282 P.2d 135], internal citations omitted.)

"A book account is defined . . . as 'a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation.' It is, of course, necessary for the book to show against whom the charges are made. It must also be made to appear in whose favor the charges run. This may be shown by the production of he book from the possession of the plaintiff and his identification of it as the book in which he kept the account between him and the debtor. An open book account may consist of a single entry reflecting the establishment of an account between the parties, and may contain charges alone if there are no credits to enter. Money loaned is the proper subject of an open book account. Of course a mere private memorandum does not constitute a book account." (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65-66 [317 P.2d 155], internal citations omitted.)

"A book account may furnish the basis for an action on a common count ' ". . . when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant." ' A book account is described as 'open' when the debtor has made some payment on the account, leaving a balance due." (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal citations and footnote omitted.)

"[T]he most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account." (Interstate Group Administrators, Inc., supra, 174 Cal.App.3d at p. 708.)

"It is apparent that the mere entry of dates and payments of certain sums in the credit column of a ledger or cash book under the name of a particular individual, without further explanation regarding the transaction to which they apply, may not be deemed to constitute a 'book account' upon which an action in assumpsit may be founded." (Tillson v. Peters (1940) 41 Cal.App.2d 671, 679 [107 P.2d 434].)

"The law does not prescribe any standard of bookkeeping practice which all must follow, regardless of the nature of the business of which the record is kept. We think it makes no difference whether the account is kept in one book or several so long as they are permanent records, and constitute a system of bookkeeping as distinguished from mere private memoranda." (Egan v. Bishop (1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].)

" 'The common count is a general pleading which seeks recovery of money without specifying the nature of the claim . . . . Because of the uninformative character of the complaint, it has been held that the ypical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.' However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff." (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)

"Although such an action is one at law, it is governed by principles of equity. It may be brought 'wherever one person has received money which belongs to another, and which "in equity and good conscience," or in other words, in justice and right, should be returned. . . . The plaintiff's right to recover is governed by principles of equity, although the action is one at law.' " (Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)

"ince the basic premise for pleading a common count . . . is that the person is thereby 'waiving the tort and suing in assumpsit,' any tort damages are out. Likewise excluded are damages for a breach of an express contract. The relief is something in the nature of a constructive trust and . . . 'one cannot be held to be a constructive trustee of something he had not acquired.' One must have acquired some money which in equity and good conscience belongs to the plaintiff or the defendant must be under a contract obligation with nothing remaining to be performed except the payment of a sum certain in money." (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14-15 [101 Cal.Rptr. 499], internal citations omitted.)

" 'As Witkin states in his text, "[a] common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract." ' A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract." (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)

"In the common law action of general assumpsit, it is customary to plead an indebtedness using 'common counts.' In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a ommon count are '(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.' " (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)

"A common count is not a specific cause of action, . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable." (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.20, 8.47 (Matthew Bender)

12 California Forms of Pleading and Practice, Ch. 121, Common Counts (Matthew Bender)

4 California Points and Authorities, Ch. 43, Common Counts and Bills of Particulars (Matthew Bender)

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373. Common Count: Account Stated

[Name of plaintiff] claims that [name of defendant] owes [him/ her/it] money on an account stated. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [
name of defendant
] owed [
name of plaintiff
] money from previous financial transactions;

2. That [
name of plaintiff
] and [
name of defendant
], by words or conduct, agreed that the amount stated in the account was the correct amount owed to [
name of plaintiff
];

3. That [
name of defendant
], by words or conduct, promised to pay the stated amount to [
name of plaintiff
];

4. That [
name of defendant
] has not paid [
name of plaintiff
] [any/all] of the amount owed under this account; and

5. The amount of money [
name of defendant
] owes [
name of plaintiff
].

Sources and Authority

"The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due." (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)

"The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. If the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct as rendered." (Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.)

"An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, ' "it becomes a new contract. An action on it is ot founded upon the original items, but upon the balance agreed to by the parties. . . ." Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.' " (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787 [163 Cal.Rptr. 483], internal citations omitted.)

"To be an account stated, 'it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.' The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account. However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due." (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752-753 [241 Cal.Rptr. 883], internal citations omitted.)

"An account stated need not be submitted by the creditor to the debtor. A statement expressing the debtor's assent and acknowledging the agreed amount of the debt to the creditor equally establishes an account stated." (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr. 757], internal citations omitted.)

" 'The common count is a general pleading which seeks recovery of money without specifying the nature of the claim . . . . Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.' However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff." (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)

"The account stated may be attacked only by proof of 'fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.' The defendant 'will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or invalid.' " (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)

"An account stated need not cover all the dealings or claims between the parties. There may be a partial settlement and account stated as to some of the transactions." (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)

"In the common law action of general assumpsit, it is customary to plead an indebtedness using 'common counts.' In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are '(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.' " (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)

"A common count is not a specific cause of action, . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable." (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515

1 Witkin, Summary of California Law (9th ed. 1987) Contracts, §§ 917, 918

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.10, 8.40-8.46 (Matthew Bender)

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Trial date is this Monday Sept 16.

 

I just got a request for dismissal without prejudice, which is bittersweet. I would prefer if the case was dismissed with prejudice,...Is there something I can do? I really don't want to go through this again with the same alleged debt.

 

Thanks.

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Well I don't know how much work you put into the case, been a long time between posts. You could bluff them and tell them you are ready for trial, and since you do not want to have to do it all over again, you will agree to a dismissal with prejudice.

Chancy if you are nor ready.

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They may file a dismissal anyway...since we don't know what happened since December, there's no course of action to suggest...

 

Go to court tomorrow.

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