Pint

Damage Control - Sued in California by Midland, Trial Soon

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*UPDATE - UPDATE - UPDATE*

 

Looks like Midland is requesting to dismiss the case! See Post #20...

 

 

Ok, my trial is set for May 24, 2013 (Civil Trial Assignment). Seventeen days away. I've pretty much done things half-heartedly up til now - and now I'm a mess. Yes, my own fault in not attacking this thing head on. Today I tried to file a Graduated Sworn Denial on Account and the clerk said that "Never seen one of these before, this looks like an Answer...we can't file this" she had me confused when I left the courthouse empty handed and back home feeling downtrodden.

 

Since I don't feel like I know enough and time is short (still working on My MIL and Trial Brief with help from ASTMedic and Aticnib's great posts)  I'm beginning to wonder if it's realistically too late to win with any possibility and maybe I should bluff my way to a greatly reduced settlement.  Question #12 in my Q&A below explains what I've done/sent so far.

 

 

Where do I go from here? What should I do. I'm lost.  Any responses or help is so greatly appreciated! (scared in Sac)...

 

 

Pint

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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.)

Brachfield Law Group

 

3. How much are you being sued for?

Principal: $3,014, with their fees added: $4,459.90

 

4. Who is the original creditor? (if not the Plaintiff)

GE Money Bank

 

5. How do you know you are being sued? (You were

served, right?)

Yes, Summons served

 

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

In person, where I live

 

7. Was the service legal as required by your state?
 Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

No prior contact

9. What state and county do you live in?

California, Sacramento

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

July 1, 2009 is shown

 

11. What is the SOL on the debt? To find out:

SOL is 4 years

  1. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

2/26/2013 Notice of Hearing Set Date: 5/24/2013

11/15/2012 Case Management Statement

6/13/2011 Order on Court Fee Waiver (FW-003)

6/10/2011 Answer - (B&P 6322.1)

6/3/2011 Proof of Service of 30-day Summons & Complaint - Personal

5/11/2011 Summons

5/11/2011 Declaration – Other

5/11/2011 Civil Case Cover Sheet

5/11/2011 Complaint - (B&P 6322.1©)

5/11/2011 Declaration - Other

 

It's pretty ugly. Some of the documents haven't even been filed with the court yet even though I sent them and the POS in time (?) Here's what I've sent.  Please excuse any redundancy to what's shown above:

1. My Answer 6/10/11

2.BOP (sent same time as my Answer) 6/10/11

3. Answer to their CCP96 4/22/13

4. Sent My own CCP96 (not filed with the court)  4/22/13

5. Subpoena Witness for the Affidavit in Lieu of Testimony (waiting for POS) 5/6/2013

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Only in Answer to Summons

 

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

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?

 

Midland claiming  Contract - Rule 3.740 Collections, Collections (e.g., money owed, open book accounts)

also CCP 395 ( B) obligation for goods, services, loans, or extension of credit

 

I responded with answer to summons

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Nothing with the summons. Nothing in Trial Brief. In the BOP response and Affidavit in Lieu of Testimony they provided Bill of Sale between Midland Funding and GE Money Bank, Screen Printouts with parts of the account, Phone and SSN blacked out.

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ok you only got a few days to do this. You are right, you shouldn't have waited this long. (ok tongue lashing done)

 

Who signed the affidavit?  was it a person within 150 miles?  Where was it signed.  Midland is famous for sending affidavit's signed in places like Denver  with a statement that says they can be served at some local addy.  They can't.  So when your POS comes back undeliverable, you need to file a motion to strike affidavit because affiant cannot be served.

 

Start a motion in limine, objecting to their evidence.  Look in Aticnib's thread, he did some great stuff in there. You want to tear apart the bill of sale on how it doesn't reference your account, about how it does not reference your account on the actual bill of sale.  Then start on the data sheet. Tear it apart. object to it using info you will find in aticnib's thread.  (I think he put it in there)  You can look at my motion in limine that I just sent today, copy and paste someof it if you have to, then change the info.  I tore down the bill of sale, the redacted data sheet, and the declaration (un motorized affidavit)  I also tore down the account stated theroy, if yours is a breach of contract, did they include the contract? Did they include a complete BOP? If not, tear it down.

 

These cases are all similar, you should be able to put it together, but now is the time to get off your butt and do it.  You are going to need some serious hours for this.  If you have to call in sick to work for a day, losing a days pay is better than losing 8k.  

 

Seadragon is from california, and has lots of great info, redacted motions, et all in his threads.  search him out, and you will find them.

Calawyer is also a cali guy, and he has lots of great advice. look him up too.

 

Get a pen and paper, and the stuff you need when searching, write down where you got it, or copy and paste it into word, so you will have the reference   

I am a little spacy when it comes to putting stuff together that makes sense to others, lol, but it makes sense to me, so hopefully you understand what I am trying to tell you.  Here is my motion in limine.  Or feel free to use one of the others from cali, but get it done. 

Brief Motion in limine 3.doc

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did they ever send you a request for production of documents, or a set of admissions and rogs?   Did you send them any requests besides a BOP?  If it is an open book account, I think that is account stated, and BOP would not apply.  Did they send you any statements from the account?  

 

They also should have sent you the cardmember agreement, as they are saying extension of credit.

 

So while you are at it, send them a meet and confer letter telling them their BOP is incomplete, and you want them to send you all your statements from zero balance to charge off so you can see how charges and interest was calculated, you want the cardmember agreement (to bad you didn't do this in the beginning, I know GE has an arb clause for JAMS,, but you would have to had done it right after your were served)  

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It looks like their response to your ccp96 is due in a little more than a week, so look for it, and hold them to it. only evidence and witnesses on the list may be used at trial, and if they don't respond on time, then they cannot introduce anything (upon your objection). It doesn't look like you have done TOO bad, I've seen a lot worse. They key step taken was the sending of the ccp 96 witness / evidence request, which you did, so you are still in the game, and are not going to get blindsided.

You have time to file motions in limine to strike evidence and make a trial brief.

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shellieh98: Thank you so much for your direction and the Motion in Limine!! I will be taking work off tomorrow and have a pot of coffee on the ready in order to work into the wee hours and further on this.

 

Here are the answers to your questions

 

Who signed the affidavit?  was it a person within 150 miles?  Where was it signed?

Midlands legal Specialist who is listed a 5 address where she will accept service - signed the affidavit. One of the address shows within 150 miles BUT, She signed the affidavit in Minnesota. I don't expect her to show up.

 

Did they ever send you a request for production of documents, or a set of admissions and rogs?   Did you send them any requests besides a BOP?

The did not send a request. Only time they asked me to provide documents was when they sent the CCP 96 asking for any witnesses or documents I may use at trial. Likewise, I didn't send them a request for documents except for the BOP and my own CCP96.

 

Did they send you any statements from the account?

I think possibly. In the BOP and Affidavit, near the top of what looks like a screenprint there is a section that says statement date. Also there is a section titled "Balance Summary" and lower section titled "Account Activity". 

 

 

They also should have sent you the cardmember agreement, as they are saying extension of credit.

They sent a GE Money Bank Credit Card Agreement. Is the statement and credit card agreement they sent something I should be concerned about? (all considering)

 

 

Thank you again Shellieh98

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Anon Amos: Thank you for your encouragement...I will look for the response and definitely raise the objection against the CCP 96 if they attempt to bring it forth. I feel like I'm no longer on an island all by my lil self. Thank you both!

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by statements I mean the actual copies of the monthly statements.  yes they need monthly statements for account stated, and final statement should show account is closed.  Most only send the last statement a month after the last payment, and it does not show the account as being closed, but open, like you are still doing business.  One of the things they need to prove with account stated is account was closed, so the last statement would be important.

Not alot to worry about as long as you get the affidavit thrown out, that person will not be there to accept service.  I would try twice so it shows you had a good faith effort in serving it. ;)

so read in my limeine on the account stated stuff, if they cant prove it, that count is gone.

 

 I wasn't sued on breach of contract, so look in seadragons docs for things on this, or maybe anon amos can weigh in, or one of the other cali boys.  You don't want to rely on JUST the affidavidt, you want to be able to tear each part of their case apart. That way if one thing does get in, they still won't have enough to prove standing.

 

after you have had 2 unsuccessful attempts on serving, file a motion to strike affidavit.  

 

There is probably more, but it's late here, and my brain is fried, gotta work tomorrow. One of the others will weigh in tho. :)

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Excellent Shellieh98! I'm going to use that portion in your limine about account stated. In my summons they don't have the breach of contract checked off although there is a space for them to do so. I'm going to cover my bases regarding the account stated.

 

I've been reading nonstop and I have begun to piece together my MIL. ASTMedic's MIL helps a great deal since even the closet location for the Witness (Carina Bowman) to accept service is the same one as his. 

 

You mentioned I should have a Motion To Strike ready once the Subpeona's POS comes back undeliverable. Does anyone have an example of a Motion to Strike (for California)? I don't know where to get started with that....

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Use my stuff.  Is the affiant Kayla Haag?  (THE HAG?)  My stuff is probably identical to what you got.  And I'm glad you did the sworn denial.

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Subpoena Kayla Haag!!!  Immediately.  Serve her at one of those addresses.  She will not be there!  Then put that in the Motion In Limine and the Trial Brief.

 

I never got to use either of those because they dismissed before trial.  They will probably do that on yours too if you subpoena the hag.

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Did they send you a package with a Bill of Sale by Original Creditor and an Affidavit of Sale of Account?

 

If they did, it would come with an "Affidavit in Lieu of Testimony"

 

The person who signed this affidavit is the person who works for them who is trying to get away with putting 5 different addresses within 150 miles of place of trial but she lives in Minnesota and the notary will be in Minnesota.  In my case it was Kayla Haag.

 

THIS IS THE PERSON you want to subpoena!!!  This is we mean by CCP98.

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Aticnib, Yes and Thank you sooo much for the information you've provided!! I've been reading your post and it sounds pretty identical, and honestly I've been relying heavily on your MIL and Trial Brief - along with helpme's and Shellieh98's. I can't tell how much this has sped up the process for me.

 

In the Affidavit in Lieu of Testimony, Carina Bowman is listed instead of Kayla Haag. (same difference it appears since they both signed Notary in Minnesota).

 

I was not able to file the sworn denial. The clerk believed it to be an 'Answer' (even though I already filed answer and the docs I have her stated Defendant's Sworn Denial on Account) and since she had never seen one before she wouldn't accept it. Confused me and I didn't want to argue with the clerk. Maybe I named it wrong?

 

I've sent subpoena by way of Sheriff to the Gateway Dr. address in Sacramento to this Carina Bowman.

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Hi Pint,

Welcome. If you need any additional help post it. You've pretty much have the ammo to fight between mil and trial brief. The one thing is for trial don't allow jdb to ask for a continuance. Object to it. Must asked via a motion. In our case we had no choice judge gave the otherside the continuance.

Regards

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I just looked online at the Sheriff's attempt to serve Subpoena. Showed Unsucessful as of 5/8/2013. Should I have them attempt to serve again?

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I would try one more time, then motion in limine to preclude the affidavidt, as affiant is unable to be served.

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helpme: Thank you! all your info has already helped me tons! That piece of information about stopping their request for continuance is something I will write as a note for trial and commit to memory.

 

shellieh98: Ok. I will follow your instruction and have them attempt to serve subpoena again and then send the MIL.

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helpme: Thank you! all your info has already helped me tons! That piece of information about stopping their request for continuance is something I will write as a note for trial and commit to memory.

 

shellieh98: Ok. I will follow your instruction and have them attempt to serve subpoena again and then send the MIL.

Pint,

 

It's a Title 3 rule. I was trying to look for it but couldn't locate it. Maybe calawyer will come by and direct you...

Found it....Here it is  http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1332

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Perfect, helpme! ...the continuance must be asked for via  "noticed" motion. ok I see now. The help I'm getting here is incredible.

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Case dismissal?!!

 

I received mail today from Midland thinking it was an early response to my ccp 96 request. Instead it was a cover letter stating Request for Dismissal Without Prejudice:

 

"May 10, 2013

 

Superior Court of California, County of Sacramento

Attn: Clerk, Civil Division

720 Ninth St. Rm 611

Sacramento, CA 95814

 

Re: Midland Funding, LLC v. Pint, et al,

Case number 34-2011-xxxxxxx

 

Dear Clerk of the Court:

Enclosed please find a substitution of attorney along with a request for dismissal. Thank you!

 

Sincerely Midland Credit Management, Inc.

(866) 625-5053

0"

 

Then they provided a copy of Request for Dismissal dated 5/9/13 (form CIV-110) and Substitution of Attorney ( form MC-050) dated 4/25 by Midland rep and 4/30 by their new attorney. No stamp  on them from Court Clerk though.

 

Is this real? No tricks? I have my MIL and Declaration ready which is due in the mail by Wednesday. If they are truly requesting dismissal, how can I get a Dismissal WITH Prejudice?

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Does it cost anything to file the Trial Brief and MIL?  If not, I would file it anyway and send it to them. 

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Does it cost anything to file the Trial Brief and MIL?  If not, I would file it anyway and send it to them. 

I don't know but I will go to the courthouse and find out. Obviously I'm excited about seeing the letter but leery of calling this a win just yet since I can't tell if the dismissal has actually been filed.

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Hang on to that letter. It would be very deceptive if they didn't file it. I am sure they will. Congrats!

 

Not much you can do really to get that with prejudice. It is their right to stop and dismiss without prejudice. Rarely do they come back. And if they do, you beat them once, you can beat them again.

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Yon can verify by looking online or bring the letter and dismissal and show it to the clerk, if it is correct, I would request a stamped copy.

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Does it cost anything to file the Trial Brief and MIL?  If not, I would file it anyway and send it to them. 

It shouldn't. MIL's are heard at trial and not on by notice. I have never heard of either of these costing anyone. It would probably cost a lot more not to file them.

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