Jett42

UPDATE: I'm on ssi and being sued by midland funding please help

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Case Dismissed Without Prejudice - OCT 16 2013

I guess they can file and try the case again if they want but the SOL on this case is not to far off so i don't expect to hear from them again.

I want to Thank all here who helped me, Especially Seadragon for the endless back and forth emails and all the documents he helped me with, this man is amazing!

I also want to Thank nobk4me for posting about Midlands Consumer Bill of Rights
article 3 b

And Thank you calawyer and all the others on this forum for your input, I could not have done this without you, I probably would have been like many others and not even went to court or went but lost because i had no clue, this forum and the people on it has provided me with information i needed.

Thank You!

forum donation incoming soon as i know if i still have a check with the gov shutdowns and what not.

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Hello forum, i'm new here and really need some help. Yesterday i was handed a summons at my front door by midland funding llc, i have never been sued and i am on disability ssi fixed income and cannot pay what they want, i have been reading this forum for hours and found lots of good reading on midland but nothing about people like me on ssi, this is my only income and it barley gets me by month to month, i live alone in a small apt and have some mild retardation so i am a little slow but maybe not stupid since i am here right?. i have 29 days to respond and file a written response to the court and have a copy served on the plantiff. i have no money for an attorney so i guess i have to do this on my own, with your help maybe i can win, can you tell me what i need to do and exactly how to do it step by step, where do i get this answer document to file out and file with the court?. i know they cant take my ssi check i seen section 207 but i knew this long ago but i'm still a little scared and nervous. i have direct deposit of my ssi, but i worry a mistake could be made and they freeze my account or try to take my beat up 26 year old vehicle. help!

Edited by Jett42

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First things first: Answer the questions below. It will all help us, help you

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? To find out:

12. What are the Causes of Action filed in your complaint?

Then we can get a better understanding..I beat Midland earlier this year. My thread for Midland and SkippieB just beat them as well.

This site might help you as well http://www.creditinfocenter.com/forums/there-lawyer-house/311780-website-may-help-disabled-senior-citizens-debt.html

Here's my thread on Midland: http://www.creditinfocenter.com/forums/there-lawyer-house/310167-being-sued-midland-funding-ca.html Look at Post #4 on which form to use to answer the complaint.

Here's an article to help you understand why we fight against JDB's: http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2206&context=fac_pubs

Edited by helpme

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1. Who is the named plaintiff in the suit? MIDLAND FUNDING LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) No firm listed other then Midland Funding llc out of San Diego, but there is 4 Attorney's listed but one has a check mark and that is: Timothy S. Brown

3. How much are you being sued for? 2,688.46 with additional interest on that amount of 324.87

4. Who is the original creditor? (if not the Plaintiff) i will take a guess and say CITIBANK SOUTH DAKOTA

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

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

7. Was the service legal as required by your state? I dont understand this question? but i have the Summons in my hand

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? None

9. What state and county do you live in? California Tulare County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) I don't recall the last payment but it was at least 2-3 years ago

11. What is the SOL on the debt? To find out: It says within the last (4) years Defendant became indepted on the account and so on

12. What are the Causes of Action filed in your complaint? i know this is simple but i dont understand?. I owe on an old credit card

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12. What are the Causes of Action filed in your complaint? i know this is simple but i dont understand?. I owe on an old credit card

On the complaint it should state the cause of action.

Breach of Contract

Account Stated

etc.?

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Account stated...

I bet there's Open Book Account, Money Lent and Received and Breach of Contract.

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Back to your original question, I don't believe they can go after you if SSI is your sole source of income. Well, actually they can go after you and get a judgment, but they can't attach you SSI and start pulling from it to satisfy the judgment.

Fight these guys and make it known you are on SSI. They will realize it is pointless and will dismiss.

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what does Account Stated mean?

do you guys sit here hit reload every few minutes like i do for a reply lol

i been reading alot of good info here and as one person on the board said it makes me want to puke when i see how these JDB scam people with the tactics they use.

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requesting a Bill of Particulars (BOP) will not work. Once you have answered the complaint, you will go right into what is called discovery-requesting documents from Midland.

1. ALL DOCUMENTS evidencing any assignment of the claim at issue in this litigation from the original creditor to YOU.

2. All statements from 0 bal to the amount Plaintiff is claiming damages on.

3. The original signed Credit Card application bearing Defendant's signature.

That's it. You don't want to send too much. It is a lot of work if they send you nothing but objections to your request. I will post the link to the template as soon as I find it.

Regards..

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ok so how do i work with these documents, i downloaded them to my desktop, do i need microsoft word and if so what is the best version for these docs? i think i have most microsoft office products from 2000 up to 2010, i just have to install them and that will take a little time cause i'm sure i will have to get windows update patches and stuff.

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what does Account Stated mean?

do you guys sit here hit reload every few minutes like i do for a reply lol

i been reading alot of good info here and as one person on the board said it makes me want to puke when i see how these JDB scam people with the tactics they use.

Account stated basically means that by not disputing the charges made on your credit card, you agreed to the charges. By using "account stated" they do not require a signed contract. Your use of the card means you agreed to the terms of the contract.

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ok so how do i work with these documents, i downloaded them to my desktop, do i need microsoft word and if so what is the best version for these docs? i think i have most microsoft office products from 2000 up to 2010, i just have to install them and that will take a little time cause i'm sure i will have to get windows update patches and stuff.

The format header will always match the top of your complaint.

In the Court of Blah blah blah'

Plaintiff (Midland)

v

Defendant (you)

Case No.

After that, just follow the templates and customize them to your specific case.

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ok so how do i work with these documents, i downloaded them to my desktop, do i need microsoft word and if so what is the best version for these docs? i think i have most microsoft office products from 2000 up to 2010, i just have to install them and that will take a little time cause i'm sure i will have to get windows update patches and stuff.

I made the documents very simple for you. Everything highlighted in yellow is what you need to provide. You will need microsoft word 2003 or greater to add your changes. However, you can view it online just click on the link.

Here's an article on how to defend against JDB's and it explains account stated: http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2206&context=fac_pubs

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Yes i did view it online and seen how easy it looks with yellow where i need to change things, Thanks alot for making it easy for me and i want to Thank you all for your help and im sure i will be back with more questions after i get office installed wich could take an hour or more

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Midland is a junk debt buyer dont even think of paying them a penny.

FYI Banks and other financial creditors such as midland funding can't touch your Social Security benefits.But you will need to respond to their complaint.

www.courts.ca.gov/documents/pld050.pdf use this to file a general denial

www.courts.ca.gov/documents/fw001.pdf fee waiver

www.courts.ca.gov/documents/pos040.pdf proof of service

"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)

Edited by racecar

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BTW - They are not going to take a 26 year old beat up car. It would cost them twice as much to take it than what they would get out of it by the time you include court fees to create the lien, sheriff and towing fees for the repo, storage fees, and auction fees.

In addition to the above, CA exempts the first $2725 for purposes of judgements. You vehicle cannot be worth that much. Therefore, it is exempt from them along with your income.

As the others say, answer the complaint, make them spend the money, then when you talk to the lawyer about settlement (and the judge will make you do it), let them know you have no garnishable income, no garnishable bank accounts, and no assets so you do not care if you settle or not.

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Good stuff, i feel a little relief now but i been up about 22 hours and need sleep my head is numb. i got word installed and working and the docs open right up but i'm to tired now but i will get back to again probably around midnight Thanks again.

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Jett no need to stay up for 22 hours,get plenty of rest and study for a few hours each day and ask any questions you may have.

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.)

You may owe someone but you dont owe midland.

Have you done business with midland funding,Did you establish the relationship of debtor and creditor with midland funding, did you make an agreement with midland funding on any amount or balance due,did you promise to pay anything to midland funding.

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They can not touch your SSI, but make sure that you inform your bank that you might one day have some one try and garnish your account and remind them it's SSI. Also, make sure you do not co-mingle any other income or money in that account, or they will be able to get at it all.

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I'm a nice guy, if they went for it I'd pay them 5-10% of what they bought my debt for......................for PFD, NDS, and No selli to a nobody elsa...................................IN WRITING, CERTIFIED and FILED WITH THE COURT.

Golly Gee I'm such a nice guy, I don't know how I stand me!!:-)

Then if I had them on any FDCPA's I'd file on their arse's.............and get 500% back on my investment.:wink:

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Second you should have plenty of time to prepare and have a little fun while you develop a new skill set. You are scared right now but I think you will find this fun. You said you have disabilities which will give you an advantage in court, especially when you show the court that they are stpid even though they passed the bar exam(they probably cheated on it too.)

So to answer your question you look on this link:

California Courts - Browse All Forms By Name

PL-D-010 or 050

and deny deny deny.

Send a Bill of Particulars by Certified mail return receipt requested tomorrow, the work on the general denial or the answer which ever is approprate depending on whether it is verified or unverified complaint.

also you are going to need a proof of service for your answer and for giggles on the general denial write Jury Trial Requested, that keeps the option open

look under fee waivers form FW-001info for the court to waive fees. you fill it out and send the original with an Order on fee waiver for the court to sign to he court and keep a copy for yourself(Do Not send a copy to plaintiffs or their attorney.)

and then you will be on track to learn somethings that are new, and you could win. We will help so don't worry so much.

Hello forum, i'm new here and really need some help.

Yesterday i was handed a summons at my front door by midland funding llc,

i have never been sued and i am on disability ssi fixed income and cannot pay what they want, i have been reading this forum for hours and found lots of good reading on midland but nothing about people like me on ssi, this is my only income and it barley gets me by month to month, i live alone in a small apt and have some mild retardation so i am a little slow but maybe not stupid since i am here right?.

i have 29 days to respond and file a written response to the court and have a copy served on the plantiff.

i have no money for an attorney so i guess i have to do this on my own,

with your help maybe i can win, can you tell me what i need to do and exactly how to do it step by step, where do i get this answer document to file out and file with the court?.

i know they cant take my ssi check i seen section 207 but i knew this long ago but i'm still a little scared and nervous. i have direct deposit of my ssi, but i worry a mistake could be made and they freeze my account or try to take my beat up 26 year old vehicle. help!

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You can do it Jett. Being judgment proof should make this more fun for you than most. Go after these bastards. We'll all help.

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