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So, it's been a rough few years. Last month, just as things were starting to pick up, I was served by Midland - talk about bursting my bubble. So, I'm getting ready to address this and have spent a great deal of time on this site researching this kind of suit. Time to ask for some advice, my details are as follows:

 

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.)

Midland.

 

3. How much are you being sued for?

~ 5K

 

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

CHASE

 

5. How do you know you are being sued? (You were served, right?)

Served with summons

 

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

In person, summons left with family member.

 

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

Yes – far as I know

 

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

I may have spoken to them on the phone.

 

9. What state and county do you live in?

San Diego, CA

 

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

I was not outside SOL.

 

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

4 years in CA, or 3 years if Chase invokes Delaware law.

 

12. 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).

Summons was delivered, that's it.

 

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? 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?

30 days. I’m ready to respond, probably tomorrow. The complaint is for ACCOUNT STATED – this is the only complaint in the papers. I did not receive an interrogatory.

 

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

Nothing.

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There are some questions that I have which I haven’t seen addressed elsewhere, so I wanted to pose those here and have a thread to come back to, update, and hopefully use for feedback/help as I move along.

 

This complaint has not been verified. My planned response is a General Denial. I won’t list any affirmative defenses. Should I reserve any right to affirmative defense later on?

 

As far as name and address to serve with the General Denial, I take it I use the plaintiff address from my summons? As for name, there are several attorneys listed throughout the paperwork, though one in particular signed all paperwork and is the only one named in the online file > I take it he’s the one I name?

 

I understand my next move is to make a Request for Discovery. What should the timing be? How soon should I do so?

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Something interesting I just found...

 

This is how it worked for me, if so I would seem to have a bit more time to respond...how do I check what the official date of service is know my timeline? Call the Midland office that served me?

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Read all the posts you can find by Calawyer.  The information in them is valuable.  Some other CA posters are Anon Amos and Bad98Roadster.  They also contain great information for your state.

Thanks, will do. I've read a lot from Calawyer so far, have seen Anon Amos as well. ASTMedic threads are very relevant to my case. It all gets a bit overwhelming at times, trying to keep track of all the various threads that apply, but getting used to it. One step at a time.

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373. Common Count: Account Stated

[Name of plaintiff] claims that [name of defendant] owes [him/her/it] money on an account stated. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] owed [name of plaintiff] money from previous financial transactions;

2. That [name of plaintiff] and [name of defendant], by words or conduct, agreed that the amount stated in the account was the correct amount owed to [name of plaintiff];

3. That [name of defendant], by words or conduct, promised to pay the stated amount to [name of plaintiff];

4. That [name of defendant] has not paid [name of plaintiff] [any/all] of the amount owed under this account; and

5. The amount of money [name of defendant] owes [name of plaintiff].

Sources and Authority

•“The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)

•“The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. If the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct as rendered.” (Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.)

•“An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, “it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties…” Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.’ ” (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786—787 [163 Cal.Rptr. 483], internal citations omitted.)

•“To be an account stated, ‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’ The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account. However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752—753 [241 Cal.Rptr. 883], internal citations omitted.)

•“An account stated need not be submitted by the creditor to the debtor. A statement expressing the debtor’s assent and acknowledging the agreed amount of the debt to the creditor equally establishes an account stated.” (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr. 757], internal citations omitted.)

•“ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim … Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)

•“The account stated may be attacked only by proof of ‘fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.’ The defendant ‘will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)

•“An account stated need not cover all the dealings or claims between the parties. There may be a partial settlement and account stated as to some of the transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)

•“In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)

•“A common count is not a specific cause of action, rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515

1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 972—973

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.10, 8.40—8.46 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32

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Something interesting I just found...

 

 

This is how it worked for me, if so I would seem to have a bit more time to respond...how do I check what the official date of service is know my timeline? Call the Midland office that served me?

I don't think that applies.  

 

If you don't have time to do a full answer, a general denial will do for now.  Do a search here, there are plenty of examples

 

One more guy to look up, ASTMedic.  There is a link to his case in the "hall of fame lawsuit winners". 

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  • 3 weeks later...

Okay, so I recently filed my General Denial, along with proof of mail service to Midland (with CMRRR). As I understand it, my next move is to send the JDB a request for discovery right away - get the time-clock running on them to produce their "evidence". I have found a few example of these, so I'll get to work on writing it up for my case. If anyone has any suggestions/links, would greatly appreciate it.

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Okay, so I recently filed my General Denial, along with proof of mail service to Midland (with CMRRR). As I understand it, my next move is to send the JDB a request for discovery right away - get the time-clock running on them to produce their "evidence". I have found a few example of these, so I'll get to work on writing it up for my case. If anyone has any suggestions/links, would greatly appreciate it.

To get things started I would send a simple set of request for production just asking for 4 or 5 items. It will be easier to file a motion to compel later after you receive their objections. If you need to; later you can follow up with  RFA's and Interrogatories asking questions about the evidence produced .

 

RFPOD'S

1)    copy of credit applications for the alleged account

2)    cc statements showing charges and payments (from zero balance to current amount due)

3)    all documentation showing complete chain of assignment to midland

4)    any and all documents bearing defendants signature

5)    Terms to the alleged account

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Yep. No BOP since it is only account stated, I would start with requests for documents.  

Here is a list for production of documents that if it were me, I would send to the Plaintiff.  Redact them to fit your case, take out what they sent already.  

 

Requests for Production of Documents-

 

1.  The original signed application establishing the account.

 

2.  Charge slips bearing defendant's signature which establish use of the account.

 

3.  The original written agreement in which defendant allegedly assented to the terms of the account.

 

4.  A complete history of the account from day one, establishing the legitimacy of the balance sought.

 

5.  Any document setting forth the choice of law provision.

 

6.  Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default.

 

7.  Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce.

 

8.  Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed.

 

9.  Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial.

 

10. Proof of mailing of monthly statements.

 

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time.

 

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time.

 

13. A complete copy of the agreements that constitute the chain of title for the alleged account at issue in this lawsuit starting with the agreement between the originator of the account and its assignee and including each agreement between an assignee of the account and another assignee of the account and/or CACH, LLC. This is a request for the entire agreement, not just the bill of sale or exhibit to an agreement and includes master or "flow" agreements whose terms relate in any way to or are incorporated by an agreement transferring rights to the account at issue in this lawsuit.  In order to protect the privacy of other debtors whose accounts may be included in such agreements, CACH,LLC may redact or otherwise omit information identifying any debtor other than the defendant. 

 

14. Complete and unredacted Credit Card Purchase Agreement between Bank of America, N.A. and CACH, LLC including all of its Exhibits.

 

15. All documents and tangible things CACH, LLC received from any assignee or assignor in connection with the account that is the subject of this lawsuit. 

 

16. All documents containing any warranties or representations made by the originator or any assignee of the account at issue in this lawsuit to CACH, LLC or any other assignee of the account.

 

17. All materials intended to be used at trial that have not already been produced.

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I recently went through the same process with Midland.  I filed a General Denial and sent them an RFP.  In response, they provided me with numerous documents showing how ownership of the account changed from Chase to a collection agency to another collection agency, and so on.  My account was bundled with who knows how many other accounts in the transaction.  It definitely wasn't a very "clean" sale.

 

Since I received Midland's response, I haven't received any further communication from them.

 

Good luck to you!

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I recently went through the same process with Midland.  I filed a General Denial and sent them an RFP.  In response, they provided me with numerous documents showing how ownership of the account changed from Chase to a collection agency to another collection agency, and so on.  My account was bundled with who knows how many other accounts in the transaction.  It definitely wasn't a very "clean" sale.

 

Since I received Midland's response, I haven't received any further communication from them.

 

I just posted another thread about the possibility of sending Midland a settlement offer.  I'm moving out of state in a few days, so I'd like to put this matter to rest.  My husband and I will be purchasing a house later this year, so I also need to have this as a paid/settled debt on my credit reports.

 

Good luck to you!

That's a tough spot you're in, with the move. Hope you can work it out. Contacting them at this point I could see the JDB reacting from a position of leverage and not giving you much. Is it possible to continue your case by phone/email? At least until you would absolutely have to come back for trial? My feeling, after a lot of reading on the forum, is that the closer you get to trial and the more you show, little by little, that you know how to beat this, the more likely they will be to offer a settlement to you.

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When it comes to sending out the response to the JDB (CMRRR) and the POS filing, is it appropriate to send only to the one name or to send all 6 attorneys listed an individual copy of the response (CMRRR) and list all 6 in the Proof of Service?

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^ No thoughts on the above? I sent the response just to the single attorney. Maybe the silence means that was the right thing to do :-)

 

That is fine. As long as it is to the correct law firm with the case number that POS will do the trick.

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  • 4 weeks later...

I would send another with a copy of your cmrrr on the first in the envelope with it so you are sure they get it.  You can tell them the other does not show it was delivered, and for their convienence here is another copy.  I would still check with the postal service and have them do a tracer.

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