Jump to content

Sued by Midland in California - Gonna fight


Recommended Posts

Time to start my help me, please thread.  It is amazing how many people have been helped here.  I have been immersed for days reading so many threads.  It is so awesome.

Thank you in advance for any time you have for me.  

 

THE CASE:

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

2. What is the name of the law firm handling the suit?  MIDLAND FUNDING LLC

3. How much are you being sued for? $4k

4. Who is the original creditor?  Chase

5. How do you know you are being sued?  Served

6. How were you served?  "by Personal Service" according to the POS filed with court

7. Was the service legal as required by your state?  NO -  was actually given to spouse while defendant was at work.  POS stated personal service at home.

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, Los Angeles

10. When is the last time you paid on this account? 2 yrs 10 months.

11. What is the SOL on the debt? To find out:   CA - 4 years

12. What is the status of your case? Suit served? Motions filed?   Suite served, complaint answered at 30 days.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO

14. Did you request debt validation before the suit was filed?  NO

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

 

Under case number it lists:

COMPLAINT FOR:

(1) Account Stated

PRAYER AMT: $XXXX.XX

LIMITED CIVIL CASE

 

In body of complaint  lists "First cause of Action" (Accont Stated) and no others.


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  NONE.

 

 

Initial Questions:

 

1.  POS states service of summons was in person on the 6th of a month that has 31 days in it.  Answer was filed on the 5th of the next month.  Summons stated "respond within 30 days"  Did I file the answer in time???  Am I counting days correctly with respect to time requirements?

 

2.  I sent a copy of the answer to Midland CMRRR before  filing with the court. (It was not a court stamped copy)  I filed the PLD-C-010 and POS-040 with court.  Was it proper to serve the answer first and then file?

 

3.  The service of the summons and complaint was not proper.  Defendant was at work at the time it was served at home to spouse.  POS stated it was served to defendant.(not substituted)   I decided to answer the complaint instead of going the route of filing a motion to squash service.  From what I understand, I have submitted to the jurisdiction of the court by filing an answer.  So squashing service is pointless. It pisses me off that they get away with that crap on service.  Is there anything I can do with regard to the improper service?    I cant seem to find how to address it.  It is signed under penalty of perjury to be truthful, but what to do about it?

 

4.  From what I read so far, my case is "Account stated" as the only cause of action  So, should I send BOP?  Seems like its not proper to.  Should I send it anyways?  I know I should be firing off something to them right now.  But, I cant seem to figure out what it is.  I have not received anything additional from them.

 

 

I was going to lie down and default as I have in the past, but not anymore..  At the last minute found all of this and decided to fight back.. (Thank you.... All of you).    The 4 paragraphs in the complaint about how wonderful Midland is sent me over the top. 

They got me to answer with these 2 quotes:

"it strives to treat consumers with respect, compassion and integrity" 

"Midland strives to engage in dialogue that is honorable and constructive, and to play a positive role in consumers' lives."

 

Link to comment
Share on other sites

See if arbitration is in the cardholder agreement. That usually gets rid of them for small amounts like this. It's very expensive, and they have to pay for it. The BOP is improper for account stated. However, the CCP96 can be just as effective. That one forces them to give you everything they intend to use at trial. Anything not on the list cannot be used. If you were not served properly and can prove it, and the process server claims otherwise, you can sue them. Check the court file for proof of service and see what it says.

 

They got me to answer with these 2 quotes:

"it strives to treat consumers with respect, compassion and integrity"

"Midland strives to engage in dialogue that is honorable and constructive, and to play a positive role in consumers' lives."

 

Should have answered with a bunch of cases where they got sued for FDCPA violations and all the cases where they got sued by attorneys general.

 

 

https://www.startpage.com/do/search

Link to comment
Share on other sites

Time to start my help me, please thread.  It is amazing how many people have been helped here.  I have been immersed for days reading so many threads.  It is so awesome.

Thank you in advance for any time you have for me.  

 

THE CASE:

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

2. What is the name of the law firm handling the suit?  MIDLAND FUNDING LLC

3. How much are you being sued for? $4k

4. Who is the original creditor?  Chase

5. How do you know you are being sued?  Served

6. How were you served?  "by Personal Service" according to the POS filed with court

7. Was the service legal as required by your state?  NO -  was actually given to spouse while defendant was at work.  POS stated personal service at home.

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, Los Angeles

10. When is the last time you paid on this account? 2 yrs 10 months.

11. What is the SOL on the debt? To find out:   CA - 4 years

12. What is the status of your case? Suit served? Motions filed?   Suite served, complaint answered at 30 days.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO

14. Did you request debt validation before the suit was filed?  NO

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

 

Under case number it lists:

COMPLAINT FOR:

(1) Account Stated

PRAYER AMT: $XXXX.XX

LIMITED CIVIL CASE

 

In body of complaint  lists "First cause of Action" (Accont Stated) and no others.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  NONE.

 

 

Initial Questions:

 

1.  POS states service of summons was in person on the 6th of a month that has 31 days in it.  Answer was filed on the 5th of the next month.  Summons stated "respond within 30 days"  Did I file the answer in time???  Am I counting days correctly with respect to time requirements?

 

2.  I sent a copy of the answer to Midland CMRRR before  filing with the court. (It was not a court stamped copy)  I filed the PLD-C-010 and POS-040 with court.  Was it proper to serve the answer first and then file?

 

3.  The service of the summons and complaint was not proper.  Defendant was at work at the time it was served at home to spouse.  POS stated it was served to defendant.(not substituted)   I decided to answer the complaint instead of going the route of filing a motion to squash service.  From what I understand, I have submitted to the jurisdiction of the court by filing an answer.  So squashing service is pointless. It pisses me off that they get away with that crap on service.  Is there anything I can do with regard to the improper service?    I cant seem to find how to address it.  It is signed under penalty of perjury to be truthful, but what to do about it?

 

4.  From what I read so far, my case is "Account stated" as the only cause of action  So, should I send BOP?  Seems like its not proper to.  Should I send it anyways?  I know I should be firing off something to them right now.  But, I cant seem to figure out what it is.  I have not received anything additional from them.

 

 

I was going to lie down and default as I have in the past, but not anymore..  At the last minute found all of this and decided to fight back.. (Thank you.... All of you).    The 4 paragraphs in the complaint about how wonderful Midland is sent me over the top. 

They got me to answer with these 2 quotes:

"it strives to treat consumers with respect, compassion and integrity" 

"Midland strives to engage in dialogue that is honorable and constructive, and to play a positive role in consumers' lives."

 

For #7 I wanted to clarify:  Personal Service means that the process server was able to hand the papers to an adult aged 18 or older who is a residence of the address listed on the suit.  It does not mean they served you PERSONALLY.  Since your spouse can act on your behalf legally in many situations, and I am assuming lives with you, and is over 18 (I HOPE!)  then the service was legal.

 

Improper service is leaving it with a neighbor, leaving it with minor children stating "give this to Mom and Dad." using a false or known old out of date address, tack and mail when state law requires personal service, or worse just stating they did it when they didn't even leave the office.

Link to comment
Share on other sites

Lots of CA posters here, half the board is CA cases. Somebody will tell you what constitutes proper service in your state, or you can look it up on line. My point is that if he / she swears to the court that they served you personally when they did not, it could be bad for them. It's what they swear to that counts, not what the law says they can get away with.

Link to comment
Share on other sites

California laws regarding process of service:

 

 

§ 414.10 Authorized persons. A summons may be served by any person who is at least 18 years of age and not a party to the action. (Added by Stats. 1969, Ch. 1610.)

Comment: The 1997 legislature enacted substantial changes in Section 22350, et seq. of the Business and Professions Code, requiring that all process servers who serve process for compensation-and also any corporationor partnership that derives compensation for service of process within California-be registered with the county clerk in the county where he or she resides or has a principal place of business. Licensed private investigators and their employees are among those exempted from registration.

§ 415.10 A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery. The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. However, service of a summons without such date shall be valid and effective. (Amended by Stats. 1976, Ch. 789.)

§ 415.20 Leaving a copy of summons and compliant at office, dwelling house, usual place of abode or business or usual mailing address... 

  1. In lieu of personal delivery of a copy of the summons and of the complaint to the person to be served as specified in Section 416.10, 416.20, 416. 30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and of the complaint during usual office hours in his or her office with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after such mailing.
  2. If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and of the complaint at such person’s dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. (Amended by Stats. 1989, Ch. 1416, Sec. 15.)
Link to comment
Share on other sites

I'd just not stress the service part of the summons. Start fighting you case and kick some tail.

No BOP with account stated. If you've been reading then I'm sure you saw my thread about how I beat midland. Your case is just about a carbon copy of mine. Use the RFPOD I sent and that will get the discovery rolling.

Man Midland in Cali is going to get sick of seeing the same docs in response to every case they file.

  • Like 3
Link to comment
Share on other sites

Did they also mail you a copy of the summons?  They should have.  It IS proper service to leave with an adult at your address and then mail you a copy.  The good news by serving you this way, you get an additional 5 days to respond, you answer was timley anyway.

 

I would recommend you read ASTMedics thread located here.  He goes into detail on how he beat midland.

 

There is a lot of great help here, welcome to the board.

 

Good luck,

 

rt

Link to comment
Share on other sites

Thanks for the quick answers.  I am mainly concerned about the service with respect to the filing deadline.  The reason I believed it was improper was that they did not serve the defendant according to CCP 415.10.  However, the proof of service filed with the court listed personal service to the defendant. 

They could have followed 415.20 (B)...  Could have left with and mailed a copy and then certified it that way on the proof of service. But, they didn't.

Substituted service by 415.20(B) would have given me an extra 10 days.  Not sure if there is some way to address it or if it is even useful.  

Really concerned because I still am not sure I made the 30 day deadline.  I think I did, but want to confirm with someone.

 

It seems they didn't conform to the requirements of service, even though they could have.  Additionally, CCP 417.10 wasn't followed properly and they certified something that is false.

 

CCP 417.10  (a) If served under Section 415.10, 415.20, or 415.30, by theaffidavit of the person making the service showing the time, place,and manner of service and facts showing that the service was made inaccordance with this chapter. The affidavit shall recite or in othermanner show the name of the person to whom a copy of the summons andof the complaint were delivered, and, if appropriate, his or hertitle or the capacity in which he or she is served, and that thenotice required by Section 412.30 appeared on the copy of the summonsserved, if in fact it did appear.
Link to comment
Share on other sites

I'd just not stress the service part of the summons. Start fighting you case and kick some tail.

No BOP with account stated. If you've been reading then I'm sure you saw my thread about how I beat midland. Your case is just about a carbon copy of mine. Use the RFPOD I sent and that will get the discovery rolling.

Man Midland in Cali is going to get sick of seeing the same docs in response to every case they file.

Yes,  I have read it a few times.  Glad to hear it sounds like a carbon copy.  I still don't understand most of it.  But, from what I understand so far, it seems like the approach is what I was looking for.  Start like I am simple and stupid and leave it to them to try and provide anything to prove anything.  

 

Starting to get my head around it.  Thank you.  I will get the RFPOD off right away.  I didn't send the POS with the complaint answer.  You said in your thread to always send POS.  Was it correct not to send it with the answer?

 

I will send the RFPOD right away.  Thank you for all the docs you put up..

Link to comment
Share on other sites

I answered your question about your timeline in post #7, you're fine.

 

You needed to send plaintiff your POS with your answer, did your at least file it with the court when you filed your answer?

 

I don't think it is a huge deal you did not include your POS with your answer to plaintiff but I think you should send them a copy right away and include a letter stating that the POS was erronously left out.  Send it CMRRR (Certified Mail Return Receipt Requested) and include the tracking number in your letter. 

 

Good Luck,

 

rt

Link to comment
Share on other sites

I answered your question about your timeline in post #7, you're fine.

 

You needed to send plaintiff your POS with your answer, did your at least file it with the court when you filed your answer?

 

I don't think it is a huge deal you did not include your POS with your answer to plaintiff but I think you should send them a copy right away and include a letter stating that the POS was erronously left out.  Send it CMRRR (Certified Mail Return Receipt Requested) and include the tracking number in your letter. 

 

Good Luck,

 

rt

Thanks for the answer.  Stressing so much about getting it in on the last day.  I filed the POS with the court at the time I filed the answer. 

I will send a copy of the POS for the answer along with the RFPOD I am sending today.  

I'm sure its a technicality, but I dont get why we send POS attached to documents at the same time.  POS says you already mailed them, but how did I get a copy of the POS attached if I already mailed it.  Chicken or egg thing??

I'm going to do it that way.  Seems clearly the best way.  Just is confusing me.

I'm sure sending them lots of papers cant hurt!! 

Link to comment
Share on other sites

I'm sure its a technicality, but I dont get why we send POS attached to documents at the same time.  POS says you already mailed them, but how did I get a copy of the POS attached if I already mailed it.  Chicken or egg thing??

 

POS simply states the documents were served on the plaintiff on a specific date.  Documents are considered "served" when they are dropped in the mail box or dropped off at the post office or what ever methode you use. 

 

I have a document I'm sending you, my service person fills out a POS, signs and dates it the day they are going to mail it, makes a copy and mails it, along with the document that same day, make sense?

Link to comment
Share on other sites

If memory serves me once your answer is accepted you're good to go. There are people that have missed the deadline but still submitted an answer and they were fine.

As for the POS and CMRRR the others advice it the way to go. I send everything with a POS and send it CMRRR. You want the proof it was sent. I made sure to make a little note at the top of the green card as to what it was I sent. (Like RFOPD or whatever) This makes getting everything in order in a binder later way easier.

Basically what is going to happen is you will send RFPOD. They will send back junk. You can either challenge it now and they may get more evidence and then your job is harder. Then again they may not and they might cave and you're done with the BS sooner. It's just a gamble. I like the idea of just keeping quiet and waiting till trial and gutting them then. It's chess not checkers.

You'll have a CMC. It's cake. You'll stress but after you'll feel stupid for stressing.

Then you can wait and send the CCP 96 inside the 45-30 day window before trial. This locks them into the docs they can use. Whatever they respond with is all they can use. You'll most likely get a CCP 98 affidavit at that time. Your job is to destroy that doc by serving a subpoena on that affiant.

Did you read the post I wrote about understanding docs they will send you?

Link to comment
Share on other sites

Then you can wait and send the CCP 96 inside the 45-30 day window before trial. This locks them into the docs they can use. Whatever they respond with is all they can use. You'll most likely get a CCP 98 affidavit at that time. Your job is to destroy that doc by serving a subpoena on that affiant.

Did you read the post I wrote about understanding docs they will send you?

I read all of your "How I beat Midland".  Seriously awesome post and with all the docs, it made it clear I could fight them.

 

 I read several others, but its kind of a blur on which ones.  I will have some questions about the CCP 98 and the MIL you did since its seems being in Los Angeles will make it harder to deal with the 150 mile thing.  But I will wait until I do the discovery to deal with researching that.

 

 It was in reading about what docs they are going to be sending that I realized I need to request documents from them right away to make it easier to answer them with "You have given no proof..."

Link to comment
Share on other sites

Then you can wait and send the CCP 96 inside the 45-30 day window before trial. This locks them into the docs they can use. Whatever they respond with is all they can use. You'll most likely get a CCP 98 affidavit at that time. Your job is to destroy that doc by serving a subpoena on that affiant.

 

This is all very good advice.

 

Also, a calendar will be your life’s blood during this entire process.  Deadlines are VERY important and if you miss something important, you could loose your fight or at least make it very difficult for yourself.   Keeping that in mind, please put down in your calendar to PM me before you send your CCP 96 request.  I just beat midland using a strategy around that document and I would rather not list it in all the California posts and alert and educate JDB’s to the strategy.  I’ll be happy to tell you about it when you get there so don’t forget to PM me as your trial approaches.

 

Good luck,

 

rt.

Link to comment
Share on other sites

This is all very good advice.

 

Also, a calendar will be your life’s blood during this entire process.  Deadlines are VERY important and if you miss something important, you could loose your fight or at least make it very difficult for yourself.   Keeping that in mind, please put down in your calendar to PM me before you send your CCP 96 request.  I just beat midland using a strategy around that document and I would rather not list it in all the California posts and alert and educate JDB’s to the strategy.  I’ll be happy to tell you about it when you get there so don’t forget to PM me as your trial approaches.

 

Good luck,

 

rt.

Thanks Rivertime.  I will take you up on that help with the CCP 96.  And excellent advice on the calendar.  Especially since there is at least one other case to deal with already.(although, they have not served it)  And with spouse, probably more.

 

The court rules in California that allow them up to 180 days to serve you with the summons on collection cases is such bull....  They protect their SOL filing date, but then sit on it.  

 

Got my RFPOD out yesterday along with a conformed copy of the POS on the original complaint answer, and a conformed copy of the complaint answer.  Listed all of those on the POS for yesterdays mailing and attached that as well.  Sent it CMRRR.  I see now why everyone wished you could get the costs of CMRRR covered when you win.  At $6 a pop, it adds up.

Link to comment
Share on other sites

So, now it gets real.  Midland served 2 more suits. (One is for spouse)  All 3 suits allege different accts and balances.  Otherwise, they are identical. Will prob get a 4th.

 

 

Talk about robo-filing.  And I noticed on the Los Angeles court site, that starting this month all collection cases in Los Angeles have to file in Chatsworth or Norwalk court house depending on zipcode.  Guess the Rent-a-lawyers can just move in around the corner.....

 

So, first question is to strategy.  I answered complaint on first one not that long ago and just sent first RFPOD.  I'm mostly concerned about "tipping my hand" so to speak.  One of the new ones is over 8K.

 

Should I send RFPOD right away on new ones or spread out the requests a bit?  Hoping the difference in office groups dont put it together?  Or does it not even matter?

 

Not sure if it is matters because it seems the date for the CMR will be the fixed.  Looking at the current case summary online, they initially set an Order to show cause for 210 days out.  I believe that is because they have 180 to serve and file POS and sanctions can be issued for failure.  Then, after the complaint was answered, they vacated the OSC and set CMR for the same date/time/dept as the original OSC.

 

Second question is wit posting here to get help.  Is there a "best way" to post and keep it all straight.  One thread or multiple??  Other suggestions?

Link to comment
Share on other sites

Unless the same person is handling all of the suits, I don't think it matters.  They are not allowed to compare cases anyway.  Do everything for each case in order, and take it as it goes.

For the most recent 2(one to self and one to spouse), the same lawyer signed the complaint.  These are all coming out of Midland in San Diego with info.

The complaints all have six(6) lawyers listed on them.  

 

Glad they didn't serve all at once.  I might not have decided to fight.  With all the hours researching and getting up to speed with everyones help here,  now I'm emotionally committed to fight them all. 

Link to comment
Share on other sites

I'd just hit them with the RFPOD for all that you get. File the answers and hit them with RFPOD. They won't respond with anything anyway. You'll get some statements, a crap bill of sale and stuff like that.

 

I read all of your "How I beat Midland".  Seriously awesome post and with all the docs, it made it clear I could fight them.

 

 I read several others, but its kind of a blur on which ones.  I will have some questions about the CCP 98 and the MIL you did since its seems being in Los Angeles will make it harder to deal with the 150 mile thing.  But I will wait until I do the discovery to deal with researching that.

 

This is the one I was talking about if you missed it. It will help you understand why the docs they send you aren't the end of the world and really on par with TP if you do your job attacking the CCP 98.

Link to comment
Share on other sites

I'd just hit them with the RFPOD for all that you get. File the answers and hit them with RFPOD. They won't respond with anything anyway. You'll get some statements, a crap bill of sale and stuff like that.

 

 

This is the one I was talking about if you missed it. It will help you understand why the docs they send you aren't the end of the world and really on par with TP if you do your job attacking the CCP 98.

Thanks Medic.  I did read read that.  Didn't connect that was the one you were referring to.   Obviously I have been reading too much lately and looking up all kinds of acronyms, since it took a second to realize I already know what TP is.. :)

 

I had a question about the CCP 98.  Your MIL focused a lot on the 4 of the 5 addresses  being outside the 150 mile and the 5th being vacant!    Makes it clear they were attempting end run the statute as opposed to just "misinterpreting" it.  I anticipate I will not be so lucky.  Their san diego office is 146 mi to the court house according to google. And the 4 addresses they used on yours are within 150 mi.  So in comparing your situation to mine, this seems to be where I will have to see what they send and work with it.  So, going to try to prepare as much ahead of time, since it will be the last thing before going to trial.

 

Seemed from your posting the judge liked your MIL. 

 

So, My questions.

1. Do you thing your MIL would have been strong enough one the basis of "current address

of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place" is not met with the MN address?  
2. Your MIL seems strong enough to support that all of the "care of" addresses do not apply no matter what distance they are.  Would you agree?
Link to comment
Share on other sites

I am not far from you and delt with the same address issues.  My strategy was that sinse the San Diego address was their office and the Upland and Chatsworth address was closer, I actually chose the closest which was Upland and the people there never heard plaintiff's CCP 98 affiant.  For the simple fact that the SD address WAS their office, I didn't want to give them the opportunity to do a work around so to speak.

 

My MIL was an edit of ASTMedics and speaks to the address issue a little different.  I'll get it ready and post a little later but you are a long way away from that right now, you don't file that until just before trial and you're probably a year out or more.

Link to comment
Share on other sites

I am not far from you and delt with the same address issues.  My strategy was that sinse the San Diego address was their office and the Upland and Chatsworth address was closer, I actually chose the closest which was Upland and the people there never heard plaintiff's CCP 98 affiant.  For the simple fact that the SD address WAS their office, I didn't want to give them the opportunity to do a work around so to speak.

 

My MIL was an edit of ASTMedics and speaks to the address issue a little different.  I'll get it ready and post a little later but you are a long way away from that right now, you don't file that until just before trial and you're probably a year out or more.

Thank you, I will look for it.  I hear you on getting ahead of it.  Will try to relax a bit now that I am starting to get a handle on it. I think I have been able to get enough of an idea of where I am going in the long game, that I can make sure what I am doing now will be on that path.

Thank you for your time.

Link to comment
Share on other sites

Thanks Medic. I did read read that. Didn't connect that was the one you were referring to. Obviously I have been reading too much lately and looking up all kinds of acronyms, since it took a second to realize I already know what TP is.. :)

I had a question about the CCP 98. Your MIL focused a lot on the 4 of the 5 addresses being outside the 150 mile and the 5th being vacant! Makes it clear they were attempting end run the statute as opposed to just "misinterpreting" it. I anticipate I will not be so lucky. Their san diego office is 146 mi to the court house according to google. And the 4 addresses they used on yours are within 150 mi. So in comparing your situation to mine, this seems to be where I will have to see what they send and work with it. So, going to try to prepare as much ahead of time, since it will be the last thing before going to trial.

Seemed from your posting the judge liked your MIL.

So, My questions.

1. Do you thing your MIL would have been strong enough one the basis of "current address

of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place" is not met with the MN address?

2. Your MIL seems strong enough to support that all of the "care of" addresses do not apply no matter what distance they are. Would you agree?

So here's the skinny on the CCP 98. Per the statute the affiant that signs the CCP 98 compliant affidavit MUST be avaiable for personal service. A snowball has a better chance in hell than that person actually being there. Reason being the robosigner affiant is usually in another state thousands of miles away. So ultimately that's what our case hinges on. In my case I was just given a bonus when the sheriff clerk said "oh hey that place is vacant".

What kills us is a judge that doesn't follow CCP 98. In my case, as you saw, the plaintiff (see rent a lawyer) tried to counter by saying that personal service wasn't required. How they come up with that when CCP 98 clearly says otherwise is beyond me. So if the judge is willing to bite on what they're selling then us not allowing some random person to accept service is used to allow the CCP 98 be deemed admitted by claiming our service was improper. As you saw in that thread I just pointed out our wins, for the most part, hinge on the CCP 98 getting tossed out and the rest of the docs are then deemed hearsay. That's not to say theses cases are won ONLY on that. Many times defendants think "oh I got this" and don't prep to fight the rest of their case. Then the judge lets the CCP 98 in and the defendant falls apart.

People here need to be ready for their case to take a strange turn while standing there in front of the judge. I was somewhat prepared. I was able to pull out my copy of my brief and MIL and use the code and case law that was in it to counter the plaintiffs arguments. The one thing I wish I had with me was a code book. The plaintiff lawyer pulled out a code I wasn't familiar with (CCP 1987a) and rattled it off. I wish I had a code book to look it up. I would say get one just to be safe.

Link to comment
Share on other sites

People here need to be ready for their case to take a strange turn while standing there in front of the judge. I was somewhat prepared. I was able to pull out my copy of my brief and MIL and use the code and case law that was in it to counter the plaintiffs arguments. The one thing I wish I had with me was a code book. The plaintiff lawyer pulled out a code I wasn't familiar with (CCP 1987a) and rattled it off. I wish I had a code book to look it up. I would say get one just to be safe.

Thanks for the advice on that.  I will keep that in mind when I am prepping for it.  Its easy to forget that you have to prove that the law is not followed in order for anything to be done about it.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.