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Tracehom

Midland Funding is suing me, case in Oregon, I'm in California. Advice please!

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Midland Funding has filed a case against me in connection with an alleged account I had with Credit One Bank, N.A. in the amount of $1,100.00. The plaintiff is Daniel N. Gordon of Eugene, Oregon.

I have a few questions I'd love to get answered before I draft my next correspondence to involved parties. Any assistance anyone can provide would be greatly appreciated!

Complaint was filed in Oregon. I have very recently moved back to California. I have not yet updated involved parties with my new mailing address, should I notify Plaintiff, county court and arbitrator? I recently received a forwarded notice that the Arbitration hearing is scheduled for June 12, 2013. On that date I will be 39 weeks pregnant, I'm due on June 17th. Arbitration is mandatory in Oregon.

To date, I have filed an Answer with the Court and mailed back a response (certified and US Mail) to Plaintiff's Request for Production of Documents and Request for Admissions. My responses follow the format in the following thread regarding fighting a case against Midland Funding. I admitted to nothing and didn't produce any documents.

http://www.creditinfocenter.com/community/topic/292720-start-to-finish-winning-against-midland-funding-aka-jdb/

To date, I have drafted but not sent a Defendant's Request for Production of Documents. I was waiting to receive the date for the scheduled arbitration, expecting more than a 30 day cushion from the date of the hearing so that I'd have time to mail off/file the request. I received the arbitration letter by US mail on May 15, 2012, less than 30 days from the arbitration. Since it's less than 30 days, I can no longer send the request, correct?

It is stated that the Plaintiff's attorney will appear at arbitration by telephone, and they have already prepaid the $525 deposit. I currently reside 600+ miles from the court that the Complaint was filed in and under physician's orders, I cannot travel due my current state of pregnancy and will not be cleared to travel for an additional 4-6 weeks after I deliver. Should I request to appear by telephone or request a continuance to appear in person (which I'm assuming would provide me the necessary 30+ days to file Defendant's Request for Production of Documents). Can I use the continuance to request said documents from the Plaintiff? Or am I too late?

Per letter from Arbitrator, I am responsible for a $525 deposit. Is this a cost that must be paid by the defendant up front? If I can't afford it do I need to submit to a default judgment?

Is this a case I have any chance of winning if I didn't file the Request for Production of Documents, though I have made no admissions? I'm feeling super intimidated by the arbitration fee, and also the rumors of arbitrators ruling in favor of Plaintiff's as favors. I've already paid a $150 filing fee for the Answer and would expect a similar filing fee for the Request for Production of Documents if I end up filing it. Are all my court costs covered by me if the case is dismissed? Are any filing fees associated with my Answer and Defendant's Request for Production of Documents reimbursed by Plaintiff, and the huge Arbitration fee, reimbursed? If I lose, am I then liable for the alleged debt AND all associated court costs? I'm horrified at the thought of losing and being responsible for all these costs, especially when the Plaintiff can't even provide any proof that the alleged account belongs to me.

Also, from what I've read on Google, the Statute of Limitations in California is four years and the Statute of Limitations in Oregon is six years. Out of curiousity, which SOL applies? Oregon, where filed, or California, where contract originated and where defendant currently resides?

Thanks in advance for any assistance! Such a bummer to get stressed about a court case in late pregnancy.

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They should use whatever state you are in for the statute of limitations.  I would give the court my address so I did not miss someting important but not the collectors.

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You probably should notice DNGPC that you live in California and state that the forum is incorrect.

 

California has a whole bunch of different rules and I don't believe they have Court adjoined arbitration. You probably can file a request for dismissal  and they will start all over in California. Calf uses a form system that is more pro defendant. 

 

HP

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I believe you will have to be in Calif. for at least a year before you can use their SOL. Unless, maybe you have lived there in the past and just returned because your stay in Oregon was not meant to be permanent. Check with Calawyer on this or another CA attorney. But, as I recall, you can't just move into a state and start claiming their SOL without being there for awhile. Each state is different.

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They should use whatever state you are in for the statute of limitations.  I would give the court my address so I did not miss someting important but not the collectors.

 

You probably should notice DNGPC that you live in California and state that the forum is incorrect.

 

Most states have a requirement that you reside there for a minimum of  6 months if not a year before you can use the residency for legal purposes.  Check with legal counsel but it is very likely you will have to do this in Oregon.

 

Anything the OP gives the court is available to the plaintiff.  Court records are public documents.  

 

Also, from what I've read on Google, the Statute of Limitations in California is four years and the Statute of Limitations in Oregon is six years. Out of curiousity, which SOL applies? Oregon, where filed, or California, where contract originated and where defendant currently resides?

Thanks in advance for any assistance! Such a bummer to get stressed about a court case in late pregnancy.

 

You very likely have not resided in CA long enough for the SOL to apply or to have the case heard there.  The Oregon Statute is most likely the one in play.  You haven't said when the DOFD on the account happened so it may not matter if it was 2009 or later.

 

 

Congratulations on the baby.  You can submit a motion for a continuance and attach a letter from your OB stating you are pregnant, how many weeks, estimated date of delivery and cannot travel until 6 weeks after the birth.  That will explain to the court why you need a 60 day continuance.

 

Are all my court costs covered by me if the case is dismissed?  Yes.  It is the cost of defending a lawsuit.

 

Are any filing fees associated with my Answer and Defendant's Request for Production of Documents reimbursed by Plaintiff, and the huge Arbitration fee, reimbursed?  No.  It is the cost of defending a lawsuit.

 

If I lose, am I then liable for the alleged debt AND all associated court costs? If they sued for court costs:  yes.  

 

I'm horrified at the thought of losing and being responsible for all these costs, especially when the Plaintiff can't even provide any proof that the alleged account belongs to me.

Just because they have not provided it YET does not mean they will not show up with it and prove the case.  If this debt is really yours you may have more luck settling it for 70-80% than fighting it out.  You have to do the math so to speak and determine which is better for you and your new family.

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Thanks for the information! To clarify, I temporarily resided in Oregon for a period of ten months while attending school. I am originally from California and have lived here for most of my life. California is where the contract for the account in question originated. I believe residency requirements are fulfilled after one year; since I lived in Oregon for a period of less than one year, would that make me a permanent California resident still?

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Welcome,

You should send a Request for Bills of Particular before sending Requedt for Production of Documents. Its less expensive. If you win regardless if they file with or without prejudice, you will get back ALL your fees paid to answer, etc..not other costs like sending responses via certified mail, gas mileage to/from court, post office etc.

Hth...

Btw- look into request for continuance and change of jurisdiction or venue. On my thread I have Request for Bill of Particulars under Its Official -We Won Against EAF.

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If you win regardless if they file with or without prejudice, you will get back ALL your fees paid to answer, etc..not other costs like sending responses via certified mail, gas mileage to/from court, post office etc.

 

Not exactly.  While courts in California CAN order that a defendant's fees back to them it is not automatic and not all courts in every state do this.  Oregon does not so if the case is heard there the OP would not get them back.

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Per a reliable member on this forum, calawyer, stated in another post ccp 1032 (a) (4) as the statute states that the prevailing party will be reimbursed it costs as a matter of right., and calawyer hasn't to-date been incorrect.

Btw- he is a california lawyer.

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If you maintained residency in CA while attending school in OR, then you should be able to claim the CA SOL. To make sure, check with an attorney. You need to do this before you have to reply to the summons or they will get a default.

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Looks like since I'm already in the middle of this case with an arbitration date scheduled, I'll be unable to use California residency (since I responded to the Complaint and affirmed that I was a resident of Oregon). I'm unable to afford the $525 arbitration fee and am not seeing much hope behind sending a Motion for Continuance since I may very well lose the case and would hate to cover travel expenses to get all the way back up to Oregon and also find some way to pay the arbitration fee beforehand.

Is there any point in me contacting the OP and while not admitting to ownership of the debt, ask to resolve the matter outside of court? I am unemployed with no bank account and no property or assets of any kind. Even if they obtain a Default Judgment against me I imagine it'd be a while before they'd be able to collect anything. I was planning to offer a payment of $20/month.

Is an arrangement like this possible or even likely?

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Ask Huey Pilot if you are able to get past the required Oregon arb and go straight to the JAMS arb. That will help you a lot if possible. And, you may still be able to move this to CA as you are a resident. Check with Calawayer or another attorney.

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You can always ask them what they will take or do or not do for you.  All they can do is tell you no.  Looks like if they win they won't be able to get anything out of you anyway. 

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You said they will not let you seek removal of the case to California due to answering. Yes you should have asked about this before you answered as you often waive jurisdiction once you answer. However you said that the account "originated" in California and you live in California. If by originated you mean that the account was opened while in California, then there may be an especially easy way to not only get rid of this whole thing but stick some money in your pocket. FDCPA and Rosenthal suit filed in the California Court nearest your house for filing a case in a distant forum. If it was me doing the suing I would name Midland and their attorney just to make sure everyone is invited to my party at the court house.

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I agree with Kent, it might be worth it to try and file as he said in Calif. that Midland tried to pick a court with a longer SOL and further from you, so that it would be hard to attend. Look into it, just might be worth it, but you better get a move on. Time is not on your side.

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