Qckstx

Fighting Midland Funding Suit California

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Hello,

 

I am a newbie both here on the board as well as being sued. I discovered a manilla envelope on my porch. Lawsuit papers from Midland Funding...Yikes!

 

I found this forum earlier and learned a bit of legal advise pertaining to similar cases brought by Midland. I have since filed a General Denial with no specific details. I have since received from plaintiff-

 

  • Special Interrogatories to Defendant
  • Demand for Production of Documents
  • Request for Admission

 

I have read of 2 possible response methods, Deny or Object? Also, I received a change of venue (Court) recently.

 

 

Claimed credit originator is HSBC. Not sure which response best applies? 

 

 

Thanks.

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Have you seen my "how I did it" thread in the sticky area? Read though that and see if any of my docs help. You can post the different questions you need to answer for help.

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Thanks ASTMedic! I'll review your docs.

 

Causes of action are collection attempt of purchased default revolving account (HSBC). 

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they didnt have anything like "money lent" or "open book" or "breach of contract" or "account stated"? 

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Did you send BOP ? Have they sent you proof of assignment of the debt, I know BOP does not apply to account stated, but I did it anyways just to see what came up. I received an objection letter but also a statement that  in good faith they sent me assignment paperwork and 1 statement .

 

Take a look at my posts, I posted answer all of my

  • Special Interrogatories to Defendant
  • Demand for Production of Documents
  • Request for Admission

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plaintiff claims that defendant owes him money on an account stated.

To establish this claim, plaintiff must prove all of the following:

1. That defendant owed plaintiff money from previous financial transactions;

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

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

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

5. The amount of money defendant owes 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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I see you sent one already, just a little info for others who may be reading.

A general denial, is sufficient to raise almost any kind of defense

www.courts.ca.gov/documents/pld050.pdf

You can use the General Denial form so long as the complaint is not "verified". A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

Post them up if you need help to answer

•Special Interrogatories to Defendant

•Demand for Production of Documents

•Request for Admission

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Thank you. At this point, I am preparing my responses to:

 

  • Special Interrogatories to Defendant
  1. State Name-
  2. State each residence
  3. State name, employer for last 5 years
  4. Did I report to HSBC any inaccuracies in statements
  5. Did I ever report in writing to HSBC account opened fraudulently
  • Demand for Production of Documents
  1. Any and all documents the REFER or RELATE to credits cards issued
  2. "    " to a credit card issued
  3. "   " any payments made to HSBC
  4. "    " any correspondence sent by me to HSBC
  5. "    " any correspondence received by me from HSBC
  6. "    " any phone calls made
  7. "   " any phone calls received
  • Request for Admission
  1. Admit I applied for account
  2. Admit I used account
  3. Admit I received statements
  4. ...made payments
  5. ...I owe $1200
  6. ...not paid the $1200
  7. ...my last payment date
  8. ...received notice of last ownership and pre-legal review from plaintiff
  9. ...did not dispute ownership with plaintiff
  10. ...did not dispute accuracy of new ownership notice.

 

I have read that two responses (Deny & Object) have been used by other posters. Not sure what my best response option is going forward. I have not sent anything to plaintiff except 'filed' general denial form stating no specifics.

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These are word for word like mine take a look at the first page of my post . All of my answers were based and justified by the fact that they did not reply properly to BOP. Here is sample below for one of them

DEFENDANTS RESPONSE TO PLAINTIFFS ADMISSIONS SET NO.1

Pursuant to Code of Civil Procedure Section 2033.210 et seq., defendant "name" (“Responding Party”) does hereby respond to the Request for Admissions, propounded by plaintiff, above-named, as follows:

Request for Admissions #1:

Admit that you applied for the account.

Response to Request for Admissions #1:

Defendant objects to plaintiff's use of the word "account" on the ground that it is vague and ambiguous in the context of this litigation. Plaintiff's complaint is devoid of any factual information regarding the alleged debt. For that reason, defendant has asked plaintiff to respond to a Bill Of Particulars setting forth the items and details of the account on which the cause of action for good sold and delivered of plaintiffs complaint is based , original account application,credit disclosures,Including the dates of each item or transaction; a description of the services, materials or goods supplied or other considerations rendered; and the price or charge for each such item or transaction.Although the code requires the plaintiff to respond in 10 days, plaintiff has not provided the complete account , and payments made thereto. Without such information, defendant is unable to provide the information sought in this admission Request. Without waiving the foregoing objection, Defendant responds as follows:

DENIED

Request for Admissions #2:

Admit that you used the ACCOUNT.

Response to Request for Admissions #2:

DENIED. Defendant has answered this in request for admission #1 see response for detail.

Request for Admissions #3:

Admit that you recieved monthly billing statements from CITIBANK(SOUTH DAKOTA), N.A. or its predecessor in interest that related to the transactions made .

Response to Request for Admissions #3:

Defendant objects to plaintiff's use of the word "transactions made" on the ground that it is vague and ambiguous in the context of this litigation. Plaintiff's complaint is devoid of any factual information regarding the alleged debt. For that reason, defendant has asked plaintiff to respond to a Bill Of Particulars setting forth the items and details of the account on which the cause of action for good sold and delivered of plaintiffs complaint is based, original account application,Credit disclosures, including the dates of each item or transaction; a description of the services, materials or goods supplied or other considerations rendered; and the price or charge for each such item or transaction. Although the code requires the plaintiff to respond in 10 days, plaintiff has not provided the complete account, and payments made thereto. Without such information, defendant is unable to provide the information sought in this admission Request.Without waiving the foregoing objection, Defendant responds as follows: DENIED

Request for Admissions #4:

Admit that you made payments on the account .

Response to Request for Admissions #4:

DENIED. Defendant has answered this in request for admission #1 see response for detail.

Request for Admissions #5:

Admit that you owed $xxxx.xx on the ACCOUNT at the time the complaint in this action was filed .

Response to Request for Admissions #5:

DENIED. Defendant has answered this in request for admission #1 see response for detail.

Request for Admissions #6:

Admit you have not repaid the $xxxx.xx due on the ACCOUNT.

Response to Request for Admissions #6:

DENIED. Defendant has answered this in request for admission #1 see response for detail.

Request for Admissions #7:

Admit that the date of your last payment on the ACCOUNT was December 14,2010.

Response to Request for Admissions #7:

DENIED. Defendant has answered this in request for admission #1 see response for detail.

Request for Admissions #8:

Admit that you recieved the Notice of New Ownership and Pre-Legal Review from Plaintiff, Midland Funding LLC.

Response to Request for Admissions #8:

DENIED .That any alleged notice of new ownership was received by defendant for alleged account from Plaintiff, Midland Funding LLC.

Request for Admissions #9:

Admit that you did not dispute the ownership of the account by Plaintiff Midland Funding LLC.

Response to Request for Admissions #9:

DENIED .Defendant has already denied receipt of this notice and therefore this question is improper.

Request for Admissions #10:

Admit the Notice of New Ownership and Pre-Legal Review attached hereto as“Exihibit A” is a true and correct copy of the letter you recieved from Plaintiff Midland Funding LLC.

Response to Request for Admissions #10:

DENIED .Defendant has already denied receipt of this notice and therefore this question is improper therefore defendant is unable to admit this is true and correct copy.

Request for Admissions #11:

Admit that you did not dispute the accuracy of the Notice of New Ownership and Pre-Legal Review letter attached hereto as“Exihibit A” that you recieved from Plaintiff Midland Funding LLC.

Response to Request for Admissions #11:

DENIED .Defendant has already denied receipt of this notice and therefore this question is improper.

Response to Request for Admissions #12:

Admit that you owe Plaintiff Midland Funding LLC $XXXX.XX

Response to Request for Admissions #12:

DENIED Defendant owes Mildand Funding LLC nothing.

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Make sure to keep track of your deadlines, I don't know how far in you are on your case , I Sent BOP before I entered my answer in court . They sent no paperwork when they filed suit . So I had no idea where to start I did BOP , 15 days later answered the suit in court,sent meet and confer letter 3 times about BOP. I answered their admission , documents and special rogs requests and then sent my own . After that went dead on my side until ccp96 was due .

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Following filing of General Denial, I received Req. for Admissions, Documents and Interrogatories by US mail 6/24. Response required within 35 days after service. Claim is not verified and no addl. documents have been received by me from Plaintiff. As this is a "Account Stated" action, do you still recommend a BOP?  

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It is "Complaint for (1) Account Stated"

If ACCOUNT STATED is the only complaint against you, I believe a BOP is not appropriate. A REQUEST FOR DOCUMENTS is appropriate here, it would be the first item you'd want to send to Midland.

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Thanks RyanEX! Would the Document Request require an itemized list of requested docs? I have not seen an example of this form except for the Plaintiff's request sent to me.

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Thanks RyanEX! Would the Document Request require an itemized list of requested docs? I have not seen an example of this form except for the Plaintiff's request sent to me.

Use the plaintiff's RFP' as a template and draft yours to look the same way. You just need a short, simple list like the one I pasted below. Calawyer has an example on here somewhere that is probably worded better, but you can make this fit your case:

1) Pease provide a credit application from defendant pertaining to the alleged account.

2) Please provide all credit card statements showing all charges and payments from a zero balance to the amount charged off.

3) Please provide all documents proving assignment of alleged debt from OC to bottom feeder.

4) Please provide any and all documents bearing defendants signature.

They will just object to everything regardless of how you word it anyway; but I think you are far less likely to see a summary judgment from them if you are in discovery. Good Luck.

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Was the BOP sent after General Denial was recorded? Is BOP necessary to Deny admissions? 

No for the admissions ASTMedics responses are good. The BOP is for everything else except account stated. Following ASTMedics thread is the great resource and getting upo to speed on the law is a best step. reading the thread will give you the concepts and issues prevelant to fight and get you into the groove so to speak.

 

the responses go something like these:

 
These should help. use the responses that ASTmedic has shown to respond. They merely send the admissions hoping you won't answer then they will get the deemed admitted if you do not answer them. They couldn't give two bits to know the information, they NEED you not to answer them for them to win. If you do not respond to the others the law firm will file motions to compel in which they get lawyer fees way larger than the price they paid for the alleged debt. That would be a win for them. If they get it they would take that money dismiss the case and sell the debt.

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The key is to answer the discovery to prevent them from motioning to compel(they would get lawyers fees for that) or admissions deemed admitted(they would not have to prove those elements)

 

so here is some examples of responses.

 

 
Additionally you need to go on the offensive with discovery. You said it was only for account stated and you have excellent responses to that. In this instance the BOP would not be appropriate but you could send one anyway. I mean why are we worried about their comfort level.
 
AST Medics thread will help get you up to speed and then you will go stylistic on them
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Ok, So I have, what I believe to be a hearing this Week in Norwalk, CA. All demands have been answered. Sent BOP last year. Response was "Believed to be true". Received Declaration in lieu of Testimony last week. This included basic knowledge of original debt and details, admission of no original instrument creating account...unavailable as well as bill of sale of debt purchase along with copy of bank statement. Statement only shows name, no address so, nothing that I would have received. Affidavit of Sale enclosed, Certificate of Conformity and lastly, a copy of a Midland statement notifying purchase of alleged debt and amount owed.

 

I'm looking for any last minute advice. Looks to me like everything presented is hearsay. 

 

Thanks!

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While I am waiting to see if Midland files suit against me I found these handy little tidbits about Midland.

 

http://www.howtowinacreditcardlawsuit.net/category/midland-funding-lawsuits/

 

This case deals with proving any defendant's account was sold to Midland.........

 

http://statecasefiles.justia.com/documents/ohio/first-district-court-of-appeals/c-120674.pdf?ts=1388597457

 

They can't just show a piece of paper claiming they own your debt they have to actually produce the sales document listing your exact account.

 

 

You might be lucky enough to go against a lawyer this bad at the trial.......

 

http://www.creditinfocenter.com/legal/i-won-lawsuit.shtml

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Ok, So I have, what I believe to be a hearing this Week in Norwalk, CA. All demands have been answered. Sent BOP last year. Response was "Believed to be true". Received Declaration in lieu of Testimony last week. This included basic knowledge of original debt and details, admission of no original instrument creating account...unavailable as well as bill of sale of debt purchase along with copy of bank statement. Statement only shows name, no address so, nothing that I would have received. Affidavit of Sale enclosed, Certificate of Conformity and lastly, a copy of a Midland statement notifying purchase of alleged debt and amount owed.

 

I'm looking for any last minute advice. Looks to me like everything presented is hearsay. 

 

Thanks!

Sounds like your trial is this week. Is that correct? Which day?

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