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Midland Funding Suit coming upsuit


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I have an upcoming court date in May with Midland Funding, and have 2 questions:

 

I today got a copy of the "Request for Statement of Witnesses and Evidence" they filed with the court

 

They have 3 requests:

1. names and addresses of witnesses

2. a description of physical evidence that I intend to offer at trial

3. a description and copies of documentary evidence that I intend to offer.

 

They sued me, so why should I have to supply them with anything?  Isn't it for them to prove that their claim is legit?

 

I guess that I have to once again go back to court to file an answer to this?

 

I don't intend to bring any witnesses, nor supply any documentation other than copies of credit reports. Should I just respond with "no witnesses, no documentation", or what?

 

More importantly,  there may be a Statue Of Limitation issue now. Our court date is in May, which would make it 3 months past the SOL, unless it is based on the date the suit was filed, as opposed to the actual court date.

 

Any thoughts would be helpful.

 

Best,

 

 

 

 

 

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This doesn’t make any sense.  It sounds like they sent you a CCP § 96 request but if your trial isn’t until May, it is early.  Go read ASTMedic’s thread about beating Midland and it will explain all about this.  You have very little time to work into the CCP §§ 96, 98 strategy zone but reading his thread will be very helpful to you.  His thread is right here.

 

SOL would be based on the date they filed.

 

Good luck and post any questions you have that are not answered in his thread.

 

rt  

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Thanks Rivertime.

 

I just took a look at my files again, and my Mandatory Settlement Conference and Trial date is actually on April 17th, not May as I originally stated.

 

Yes, the doc I just received refers to "section 96" and it gives me 20 days to respond. 

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Send a CCP 96 to plaintiff RIGHT NOW!  the window is quickly closing and if you pass it, you loose this great tool.  The form is here, just fill it out, also fill out a POS, which is here, and have someone serve it to plaintiff via overnight carrier, I used UPS.   Do this today if you can but if not, make sure you do it in time for pickup tomorrow.  Overnight carrier could possibly be an automatic win for you if plaintiff drops the ball as they did with my recent run in with midland.  I'll explain later or provide a link where the strategy I used is being discussed.

 

SERVE THE CCP 96 AND POS NOW!

 

Good luck,

 

rt 

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You simply tell them you have no documents or witness and if some become known you will let them know.   You're not required to help them but it is pretty normal for them to ask you what you intend to offer, if anything, at trial in your defense.  

 

Remember this is civil court and you don't have the same protections as a criminal defendant.   While not required to really assist them you probably will need to do a tad more than a criminal defendant that is not required to say a thing the whole trial. 

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Send plaintiff a response to their CCP 96 by stating: “Defendant reserves the right to call any witnesses or introduce any evidence for impeachment purposes.”  

 

It is your right under the statute to do this and you do not need to notify the opposing party of impeachment witnesses or evidence.  It has been suggested to send the above response to give them a little heartburn.

 

rt

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I'm not real updated on specific CA procedure but I see what Rivertime suggests often and it sounds like we are basically saying the same thing, Rivertime is just giving you the specific procedural format (which is good of course).

 

Yes Coltfan, that's exactly correct.  I was in a hurry when I wrote that, I realized after I hit post I should have been more specific.  I was attempting to just re-inforce what you had already said.

 

Message to Coltfan: By the way, when's the release... I'm waiting for "it's coming to a you-tube near you" real soon... LOL xpopcornx

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Message to Coltfan: By the way, when's the release... I'm waiting for "it's coming to a you-tube near you" real soon... LOL xpopcornx

I'd say a few more weeks.  I got a very nice offer from a board member that is going to do all the editing.   So I have to get it on a drive to him and then he and I are going to get together and edit it.   It's coming but will be just a little bit longer.   I want to make sure it's done right and it does have a lot of editing to make it right. 

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Thank you both.  I truly appreciate your help and encouragement!

 

I will indeed send the plaintiff my CCP 96 first thing in the AM via overnight service. Is there a specific form I need to use for my response to their 96 request? Should I include that with my own request?

 

I don't seem to able to find a "generic" court form like the ones that ASTMedic’s is using in all his examples of back and forth with Midland. Everything I've found on the court's website seem to be for very

specific purposes.

 

Do I not need to file all of these back and forth sendings with the court?  What about the POS's for everytime I'm sending something to the Plaintiff?

I'm asking as the Disc-015 form says not to file with the court.

 

Thank you again!

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I'm going to answer here so others can see but you also have PM.

Those are not forms. They are my docs, word for word, that I used in my case. You, and others, can use them as needed. Just edit them to fit your case.

As for the CCP 96 there is a form in my "Wrapping it up" folder on google that has a PDF labeled as CCP 96. Fill that out and use it.

As for sending the RFPOD at this late in the game. I'd just send the CCP 96 as it will get the same docs a RFPOD would.

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Is the "Bill of Particulars" the same as a CCP96? Should I send either, or both?

 

Littleviking, it is already 3:30 in California, for your sake, PLEASE get that CCP 96 out today via overnight carrier or you will potentially loose a BIG advantage.  No guarantees except that if you do not get it out, I guarantee you will loose the potential strategic angle of both this document and sending it overnight.  I provided a fill in the blanks link above to both the POS and the CCP 96 request.  Please do both now and have someone else fill ut the POS for you.

 

Forget about everything else at this exact moment, no BOP no SHMOP, no nothing, just get out that CCP 96.

 

rt

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Hi RT,

 

It's on its way as I write this. It is to be delivered in the AM. I also sent my response to their 96 request.

 

Thank you for looking out for me. 

 

This whole thing is a bit overwhelming and comes at a really bad time as I'm buried in work (still have not gone to sleep from last night). But, I also realize the importance of doing it correctly, so thank you.

 

LV

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Is the "Bill of Particulars" the same as a CCP96? Should I send either, or both?

No its not the same and you can still send this. There is no date stipulation on this other than they have 10 days + 5 days for mailing in which to answer you. Unlike discovery there is a date limit as to when they have to respond to you and there is not enough time for that. 

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Thank you for the explanation and keeping me focused.

 

Well, shortly after my CCP96 was sent out, my own mail arrived, and guess what - an envelope from the Midland Funding's attorney (Brachfeld). 

 

Inside;

 

1. Affidavit in lieu of testimony CCP98, with POS attached

2. Plaintiffs Trial Brief

 

The affidavit is by a "legal specialist" working for "Midland Credit Management, (MCM), servicer of of this account on behalf of of plaintiff". She claims to have "personal knowledge about those account records maintained on plaintiffs behalf"

 

She states that she works out of their MN office. She included 5 CA addresses for service. 

 

1 MCM's office in San Diego.

2 MCM c/o Law office of Rory W Clark, in Upland

3 MCM c/o Law office of Rory W Clark, in Westlake Village

4. MCM c/o Corporation Company, Sacramento

5. MCM c/o Hunt & Henriques (another Law firm) in San Jose

 

Her affidavit is dated and notorized Nov 12, 2012.

 

She included a copy of a Bill of Sale (dated Dec 28, 2011) from Main Street Acquisition Corp (the previous JDB of this account) . With areas "redacted".

 

A closing statement between Main Street Acquisition Corp and Midland Funding LLC (also dated Dec 28th 2011) with areas "redacted". Neither doc states any account numbers or names.

 

A statement of account (dated 2012-05-20 showing my name and their account number, original account number (blacked out all but last 4 digits, Original lender HSBC and a total due $6,956.95

 

A "Field Data" sheet showing my name, address, phone (incorrect #),, SSN (last 4), a charge off balance and date (10/31/2009), and a last payment date of 3/10/2009.

 

A photocopy of a credit card statement dated 3/18/2009 as well as one dated 10/19/2009

 

A POS attached dated March 6th 2013 (6 days ago)

 

I won't go into the details of "Plaintiffs Trail Brief" here, but the "Conclusion" - states that" this is simple case of non-payment" etc etc. with an itemized list of damages amounting to $10,038.58.

 

How about that for quick developments? I guess what I just received, is essentially what I just sent them a request for?

 

My first impressions, the "legal specialist" has NO personal knowledge of this particular account, as she is not the originator, but actually the 2 or poss even  3rd JDB of this account. Secondly, she did not reference the original application/contract. Additionally, the Bill of Sale, (nor Closing Statement of Midland Funding) do not include any account number, names or anything else indicating what is actually being purchased.

 

I feel a lot better as I think there are some holes in this, and I know I've seen some discussions about affidavit's versus live testimony and whether a plaintiff in fact has a standing.

 

This leads me to believe that I should very carefully follow ASTMedic's path towards questioning standing, given that I doubt that I will be able to have their "witness" served with a subpoena in person at any of the 5 addresses they supplied.

 

Thoughts?

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I will.

 

What happens since I'm pretty sure I won't be able to have her served in person (given she lives and works quite a few states away), and she subsequently doesn't appear in court?

 

Also, should I not dispute their alleged proof (in the CCP 96) as to the issue of standing? If so, is there a specific form to be used?

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