CA help needed, Summons from Midland just served on me, want to FIGHT this.

[BusyBeaver]

Hi Everyone, 

 

I have been reading the forum for a couple of days and am very excited to take on this task. I received a summons from Midland Funding on 2/2/2013. I have 30 calendar days to respond which gives me til Monday. I was going to ignore the summons and hope it went away and then I decided to do a little research, found you folks, and now I am fired up!

 

My summons is for County of Orange in CA (where I live) but there is no court date. This is for a Citibank card purchased by JDB Midland Funding. My credit report shows the last month I was in good standing with that account was January 2009 so they probably just made the SOL. 

 

The wording on Summons is similar to others (should I type it out here or PM someone?)

 

(I want to do this well and the right way so if I should type the whole thing out I will. )

 

In a nutshell:

 

First Cause of Action - Account Stated

 

Basically stating Defendant became indebted on the Account to Plaintiff in the sum of $10,000 (not real amount) and additional interest on that amount of $3000 (not real amount). Interest has accrued and will continue to accrue on the unpaid sum of $10,000 at the rate of 10% per annum starting January 2011.

 

On the first cause of action:

1. For the unpaid balance of $10,000.

2. Interest due on $10,000 at the rate of 10% from January 2011;

3. Cost of Suit; and 

4. Such other relief as the court may deem just and proper.

 

 

 

Just some additional background. I am unemployed. I lost my home to foreclosure in 2010, owe the IRS and the State of CA (both have leins on me) and have no savings, 401K or assets at all in my name. These are the only creditors that I have heard from.

 

Those are the facts but I am fine and dealing with this as it comes. Oh and I just finished a 2011 IRS Audit. I just want to make sure that I should be going this route. I am sure if I called them to let them know of my circumstances they really wouldn't care. That is why I haven't called. 

 

So today I typed up a General Denial, put up no Affirmative Defenses but reserved the right to do so at a later time. We have to E-file these now in CA so I can do that at anytime. Do I send the General denial to the Plaintiff attorney as well or just file with court?

 

 

I also typed up a BOP, not sure if I should send this because I read on a thread that CA courts are not requiring the plaintiffs to provide these. If I do send does it get filed with the court at the same time as General denial or wait a day?

 

I also have proof of services ready to go.  Are proof of services supposed to be signed by someone other than me if I am mailing them?

 

Thank you all in advance, you all ROCK!

I

[ASTMedic]

Start Here

 

Answer the summons ASAP with pld050 that's located here.

 

Read this and the post that Coltfan wrote that I link to in my thread. Feel free to ask questions and PM if needed.

[Rivertime]

Your BOP doesn't apply to an "Account Stated" cause of action but send it anyway and see what they do, it's can't hurt.  You do not file with the court.

 

Your proof of service must be signed by someone other that you, is over 18, and is not a party to the action.  You file the POS (Proof Of Service) with the court with your answer and mail copies of you answer and your POS to plaintiff.  Send it CMRRR (Certified Mail Return Receipt Requested).

 

Midland is very slopy and very beatable, you can do this.

 

PM me and let me know which court you are in.

 

Good Luck,

 

rt

[helpme]

Welcome,

 

You came to the right place. Myself and others here in California have won against Midland. They are beatable. As Rivertime stated send the BOP but you will probably get an objection or no response as it is not required for an Account Stated Cause of Action. Therefore, if you don't receive a response initiate Request for Production of Documents. Look at astmedics thread for the requests.

Look here 2013 California Jury Instructions under 300 - Contracts to understand how the plaintiff has to prove Account Stated: http://www.courts.ca.gov/partners/documents/caci_2013_edition.pdf

 

hth

[BusyBeaver]

Hi again,

Ok so I followed your advice and sent the answer to the summons, and the BOP. Today I received a response from Midland Funding.

It states:

The Plaintiff objects to Dbefendants demand for a Bill of Particulars on the grounds that a BOP is not appropriate in an action on an account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based.

Plaintiffs complaint alleges account stated as their case of action. As such it is Plaintiffs position a BOP is inapplicable to Plaintiffs case of action. Without waiving its objection Plaintiff, Midland Funding LLC, herewith responds to Defendant, Busy Beaver, demand for BOP as follows:

Attached hereto is a copy of the following: Correspondence from Midland Credit Management, INC dated October 15, 2012 and Feb 6, 2013; billing statements related to a CITIBANK account; a copy of the Bill of Sale and Assignment between Citibank and Plaintiff; and a copy of the credit agreement related to the account provided to Plaintiff upon assignment of the account by CITIBANK.

Plaintiff reserves it's right to amend this response as additional documents are located. To the extent any additional documtents or information is found, Plaintiff will supplement this response.

Exhibit 1 is 3 copies of the Card Agreement, not signed by me or anyone.

Exhibit 2 is a copy of the Feb. 2011 Statement of the card. (last payment was in 2009)

Exhibit 3 is a generic Bill of Sale and Assignment signed by a Financial Account Manager, dated December 2011.

And an Affidavit of Sale of Accout by Original Creditor, signed by The same individual and notarized.

A Certificate of Conformity signed by an attorney.

Exhibit 4 is a copy of a bill from Midland Funding sent to me in 2012 stating that it is a pre-legal notification.

And the letters from Midland to me stating that they are filing suit and a copy of the proof of service.

Is all of this considered the Bill of Particulars? Where do I go from here? Should I keep fighting this? Thank you so much for your time and help.

Busy

[Anon Amos]

That's a pretty good response to a BOP, considering they did not have to answer it in the first place. I would continue fighting it. You need to learn the CA rules of evidence (business records exception to hearsay, rule of completeness, rules of authentication), and how to strike evidence (and affidavit) when the time comes. If you do things right; they still need a witness from the bottom feeder as well as the OC. They will not want to do that.

[Coltfan1972]

 Should I keep fighting this?

 

You're asking a consumer website that specializes on beating the living dog crap out of Midland, and which probably 25% of the posts and topics are about Midland, if you should keep fighting against Midland because they sent you an objection and the usual amount garbage they send everybody? 

 

Yeah, go ahead and put down 100% to zero percent on yes you should keep fighting.   The real question is do you want to keep fighting.   Midland can be beat with really not a ton of effort, but more effort by far than most want to put out.  The real question is just desire and will.  If it's worth it to you and you are willing to put in the time and effort you will win, it's just that simple.  The truth is that most people don't want to put in that effort and that is how Midland makes their money. 

 

Trust me, you're not going to find Midland in court going to trial on debt collection cases and working hard to secure judgments.  They are going to collect their defaults and their settlement in the hallway where they feel they can intimidate you.  They will approach those that fight with a too good to be true offer and you have to be crazy to actual open that courtroom door and fight us attitude.  However, it's Midland that is the one that goes running like a scalded dog with a huge yellow streak down their back when the consumer calls their bluff.

 

You may ask then why do they do it if they know they will lose? because it works on most and it makes them lots of money.  It's just that simple.  They have no more desire to try this in court than you probably do.  Yes there are a few around here that can't wait to actually go to trial with Midland, but we are so used to our hopes and dreams being crushed with Midland's cowardliness that it's hard to even care anymore when they drop a case and go more coward than Osama Bin Laden hiding behind one of his wives shivering as a Navy Seal blows his brains all over that coward shack he was living in.

 

Myself and others have just learned to live with the constant let down of Midland and their ever love for the cowards way out.  It just hurts too much to care anymore so folks like myself, Bruno, Racecar, Kent, First, BeerGoogles, and a ton of others have to live vicariously through others that fight Midland.  Unfortunately our dreams are usually shattered because they just go coward so often that it's almost like we are the ones that start feeling like the bully.  

 

If we were not so damn humble we would be arrogant and cocky about it, but that's not our style.  We just like to go about our business and not draw attention to how great we are and how we never lose to Midland, it would be arrogant and cocky.  Yes, it would be 100% the truth and when you back it up it's not bragging, but it's just not our style to brag about how we are the best, even though it's true.

 

So it's up to you.  Midland is beat, it's just a matter if you want to beat them.   So we want you to fight if you want to fight, but we fear for the worst if you do fight, just another coward going coward and adding you to the long list in the Midland victory thread that just annihilates Midland when they take the very stupid step of actually thinking they can go toe to toe with us.  I wish we could just rub it in their face but we can’t we have too much class for that and like I said we are just too damn humble, so we just go about our business of destroying them and never losing and just let the chips fall where they may.   God bless us and our superior ability and humble ways. 

[helpme]

Hi again, Ok so I followed your advice and sent the answer to the summons, and the BOP. Today I received a response from Midland Funding. It states: The Plaintiff objects to Dbefendants demand for a Bill of Particulars on the grounds that a BOP is not appropriate in an action on an account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based. Plaintiffs complaint alleges account stated as their case of action. As such it is Plaintiffs position a BOP is inapplicable to Plaintiffs case of action. Without waiving its objection Plaintiff, Midland Funding LLC, herewith responds to Defendant, Busy Beaver, demand for BOP as follows: Attached hereto is a copy of the following: Correspondence from Midland Credit Management, INC dated October 15, 2012 and Feb 6, 2013; billing statements related to a CITIBANK account; a copy of the Bill of Sale and Assignment between Citibank and Plaintiff; and a copy of the credit agreement related to the account provided to Plaintiff upon assignment of the account by CITIBANK. Plaintiff reserves it's right to amend this response as additional documents are located. To the extent any additional documtents or information is found, Plaintiff will supplement this response. Exhibit 1 is 3 copies of the Card Agreement, not signed by me or anyone. Exhibit 2 is a copy of the Feb. 2011 Statement of the card. (last payment was in 2009) Exhibit 3 is a generic Bill of Sale and Assignment signed by a Financial Account Manager, dated December 2011. And an Affidavit of Sale of Accout by Original Creditor, signed by The same individual and notarized. A Certificate of Conformity signed by an attorney. Exhibit 4 is a copy of a bill from Midland Funding sent to me in 2012 stating that it is a pre-legal notification. And the letters from Midland to me stating that they are filing suit and a copy of the proof of service. Is all of this considered the Bill of Particulars? Where do I go from here? Should I keep fighting this? Thank you so much for your time and help. Busy

See post #4. I stated to initiate discovery and look at astmedic's thread for documents he asked the plaintiff. That's your next step. 

[BusyBeaver]

Thank you for thevinspiration and encouragement Coltfan. I am moving forward with the fight.

Helpme, thank you for the redirection.

[noname2]

Account stated is their ONLY cause of action? I'd argue that the statute of limitations doesn't run from the date of the final payment, but rather the last item you charged to the card. Do you think that could bring the statute of limitations back in your favor?

[Anon Amos]

 Do you think that could bring the statute of limitations back in your favor?

I don't think it will. They are going to count from the last payment. Sometimes they will argue that it is from the day the account was placed as defaulted, but it would have to be stated in the terms.

[noname2]

Hmm. I'm looking at CCP 337, which states that that the SoL starts to run from the "last item." But I suppose a payment can qualify as an "item." Looks like I jumped the gun!