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Being sued by Midland Funding LLC for CC Debt. Help!


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Hello everyone, 

 

I received a summons yesterday saying that I was being sued by Midland Funding LLC for about $4800. After doing a bit of research, I discovered that they bought an old Wells Fargo CC that went into default and are now suing me to get the money I owe. 

 

I was advised to send an Answer through the local court, but I'm not sure on how to word it properly. 

 

Here is the statement from the summons:

 

1. Within the last 4 years, defendant became indebted on the account to the Plaintiff in the sum of $3509,48 on an account stated in writing by and between Plaintiff and Defendant in which it was agreed that Defendant with indebted to Plaintiff. (Not true. Never signed anything with Midland)

 

2. Plaintiff has made demand on Defendant for repayment of the account stated by Defendant has failed and refused to pay the balance due. 

 

3. As of the date of this complaint, there is due and owing the unpaid sum of $3509.48 and additional interest on that amount of $1081.92. Interest has accrued and will continue to accrue on the unpaid sum of 3509.48 at the rate of 10 percent per annum starting on January 21 2010. 

 

Any advice on how to proceed with this would be most welcome. 

 

I am not looking to settle with them. I want to fight this. 

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Within the last 4 years, defendant became indebted on the account to the Plaintiff in the sum of $3509,48 on an account stated in writing by and between Plaintiff and Defendant in which it was agreed that Defendant with indebted to Plaintiff. (Not true. Never signed anything with Midland)

 

 

You do not have to sign anything with them, they bought your account and therefore assume all the rights of the original creditor. This defense is called privity, it never works, so don't use it.

 

at the rate of 10 percent per annum starting on January 21 2010.

 

 

Here is something you can attack. It falls under a defense called failure to mitigate damages. That basically means that the plaintiff could have taken actions to lessen his supposed injury, but neglected to do so. In these cases, it is intentional. They could have sued the day the account went into default, but they chose not to. Why? To rack up interest for 3 years at a rate they can't get anyplace else. Let them buy a CD from Wells Fargo and see what they get. Won't be 10%, that's for sure. Most of this amount they are suing for is interest.

 

As far as the answer is concerned, most of CA's stuff is done with forms. Others will tell you what they are.

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That's usually the plan. Read the rules for responding, I believe you have to have somebody else mail all your stuff for you. Idiotic, but that's CA for you. Also look into sending them a CCP 454 Bill of Particulars and a CCP 96, evidence disclosure. See what they have against you. That's about the extent of my knowledge about CA forms. See CALawyer's posts, he's a consumer attorney in CA.

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That works as long as your complaint is not verified.  Go to the last page of the attached link and you will see a typical verification form for California complaints. As in the example, most (but not all) verified complaints say so in the caption itself: http://cluebytwelve.net/monkeys-lawsuit/complaint.pdf

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Also I file this with the local court correct?

Yes, if it's not verified go with the general denial, file it with the court, and send a copy to the plaintiff's lawyer, with a proof of service, form POS-30. Also, you have 30 days from the day you recieved it, so you have time to learn and then send the answer. I would use the time to your advantage, i fyou are going to fight you have a lot of learning to do. Learn about discovery (request for production of documents), if you were sued under account stated ony,  the CCP 454 Bill of Particulars cannot be used.

 

Again, I would use some of the time you have before filing the general denial and make sure you do not have a cross-complaint or any affirmative defenses that apply

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What does account state only mean? Also how do I know if I have a cross complaint?

Account stated. If you look up the cause of action / common counts of the complaint you received you will see what they are claiming against you. In #1 of the complaint it says account stated (it actually says an account was stated in writing by defendant and plaintiff). So you need to see if it also says for "open book" or "money lent", something like that as well, if it does not, and you are only being sued for account stated, then you cannot send them a bill of particulars. You can however, send them discovery, request for productions of documents (which is not as simple, but works better anyway)

 

The cross-complaint is probably unlikely, but it may be possible, if they broke any laws so far. Such as calling you several times a day, harassment, not contacting you with a dunning letter (requesting payment and offering you 30 days to dispute the debt; but instead their first contact with you was the lawsuit), something to that effect. You can think of everything they did and  Google FDCPA, and see if any violations might apply to your case.

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There are several causes of action they use. Breach of Contract, Account Stated, Money Lent, and a couple of others that aren't too popular such as Quantum Meruit. If the only one they used was Account Stated, the BOP does not apply. If they used any of the others, it does. Usually they use two or three in the same complaint. A cross complaint would be for FDCPA violations or other violations of your rights.

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Many times they will only use account stated due to the fact that they can sidestep the BOP. Account stated is the most general complaint they can use basically.

File the general denial. Don't get crazy with a bunch of defenses. Just like them being as general you want to do the same. Give them as little to work with as possible.

Get the answer filed and then we'll talk about sending them discovery. One step at a time. Also send anything and everything CMRRR so you have proof they got it. While filling out the CMRRR I put a note in the top corner to remind me what docs I sent with it. Makes organization easier later when you put things in your binder.

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MD282, a couple of other suggestions:

 

1)    If you look up the jury instructions (CACI) for account stated it will tell you all the elements the bottom feeder  must prove to win their case, and it will provide you with the case law you will need (it will make more sense as you learn more). It is posted on here somewhere, if it does not show up on this thread, or you can't find it I will post it later.

 

2) When you answer the complaint; right underneath the case #, if you type the words "DEFENDANT DEMANDS JURY TRIAL" the chances of them dismissing will go up significantly. I myself would want a jury trial, even though it will add to the work and will be much more complicated (one of the reasons they won't like it). Even if you don't want a jury, or later decide you can't go through with it, you can always convert to a bench trial. No one has ever posted on this website a case that went all the way to a jury (or anywhere near it for that matter). Even if I had no intention of going with a jury I would use it as a bluff. You have to figure that they would need a jury that likes; Bankers, Debt Collectors, and Lawyers (nothing against Lawyers), in todays economy that is not going to happen.

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. Give them as little to work with as possible.

 

I usually agree with all of your post, in this case most of your post, but I don't understand "giving them as little work with as possible". I am not suggesting a bunch of affirmative defenses he can't prove, or even close to that. But, there is a CHANCE it can get dismissed in the answering stage, if it looks like it is going to be too much effort for them to be worth it. If it appears there will be as little work as possible, they are more likely to fight. That's just my opinion, people can do what they want with it.

 

This is why I suggested that he takes time to answer, and uses the 30 days to learn all the options available.

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The summons only says account stated, so no BOP for me. They've definitely tried calling me multiple times a day but I've never answered the phone nor have they ever left a message. Also I'm not sure when the last payment I made on the original account was, so I'm not sure if they're violating the SOL. 

 

I'm going to take my time with this, but I'm supposed to fly back east for a wedding and visiting family for two weeks in May. Is this still a good idea? I'm single and live with roommates who are barely home. 

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The summons only says account stated, so no BOP for me. They've definitely tried calling me multiple times a day but I've never answered the phone nor have they ever left a message. Also I'm not sure when the last payment I made on the original account was, so I'm not sure if they're violating the SOL. 

 

I'm going to take my time with this, but I'm supposed to fly back east for a wedding and visiting family for two weeks in May. Is this still a good idea? I'm single and live with roommates who are barely home. 

Just don't be late answering it, not even 1 day late, this is going to be one of the most important parts of the case for you. You are figuring it out anyway, and you have time, I wouldn't take chances. Figure out the day it needs to be filed and make sure it gets done by that day, with a copy to the lawyer and a POS signed by someone else and sent CMRR.

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I would make sure the opposition knows about your vacation, and the court as well, that way you can avoid problems. They don't usually work very fast, a couple of weeks extension on any motions etc won't be a problem. Just don't drop the ball and disappear, you'll be in for a default judgment if you miss a court hearing or don't respond to discovery. I would request that opposing counsel provide you with email service on any documents they might serve in that vacation period. Send all this CMRRR and save everything.

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I think he means not to argue the whole case in the answer and give away his strategy.  The answer is just the start, after that we start to torture them.

I agree, don't argue the case in the answer, and I am a firm believer in the constant torture of the bottom feeder, but in Cali there are courts where you really need to assert things that you may need later, in the answer, and LA is home to many of those courts. My main point was to demand the jury in the answer, because I have seen many times where they dismissed in the answering stage (and there is a strong possibility the jury demand was the culprit).

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