Need to answer Summons ASAP to Lawyer for Midland Funding

[burdies4]

I have been reading on this site for hours. I also own GCIS (2nd Ed) but I have situation I believe I may not be able to fight based on what I've read. Looking for verification.

 

Received a letter from lawyer on behalf of Midland Funding threatening legal action if bill wasn't paid in full. Sent debt validation letter to lawyer.

 

Received the following within a week:

Copy of account statement

Copy of Bill of Sale and Assignment (showing sale of debt from cc company to Midland Funding)

 

Approximately a week later was served with a Summons for "Breach of Contract"

 

Not sure how to respond to summons since the lawyer has acct number, copy of acct statement, Contract for sale of debt from CC company to Midland

 

I need to respond tomorrow. HELP??

 

Para I: Defendant is xxxxx xxxxx

Para II: Plaintiff purchased account...

Para III: Plaintiff entered into contract with cc company, acct #

Para IVI: Terms and conditions of contract...

Para V: Defendant used charge card

Para VI: CC company performed obligations under said contract

Para VII: Defendant breached contract

Para VIII:Defendant owes Plaintiff $

Para IX: Allow Plaintiff to contact third party to collect judgement

 

[racecar]

IN THE IN DISTRICT COURT OF WHATEVER COUNTY WASHINGTON

Midland Funding

plaintiff

Vs.

your name

defendant

Civil Case #

DEFENDANT’S ANSWER TO PLAINTIFF'S COMPLAINT

Now comes the defendant for answer to the complaint and says as follows:

Paragraph 1. Defendant is xxxxx xxxxx

Answer: Defendants name is XXXXX XXXXX

Paragraph 2: Plaintiff purchased account.

2. Answer: Paragraph 2 of the Complaint is a narrative for which no answer is required. To the extent that an answer is required, Defendant denies the allegations of Paragraph 2 of the Complaint.

Paragraph 3: Plaintiff entered into contract with cc company, acct #

3. Answer: Paragraph 3 of the Complaint states a legal conclusion for which no answer is required. To the extent that an answer is required, Defendant denies the allegations of Paragraph 3 of the Complaint.

4. Terms and conditions of contract.

Answer: Paragraph 4 of the Complaint is a narrative for which no answer is required. To the extent that an answer is required, Defendant denies the allegations of Paragraph 4 of the Complaint.

Paragraph 5. Defendant used charge card

5.Answer: Paragraph 5 of the Complaint states a legal conclusion for which no answer is required. To the extent that an answer is required, Defendant denies the allegations of Paragraph 5 of the Complaint.

6. CC company performed obligations under said contract

6.Answer: Paragraph 6 of the Complaint states a legal conclusion for which no answer is required. To the extent that an answer is required, Defendant denies the allegations of Paragraph 6 of the Complaint.

7. Defendant breached contract

7.Answer: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 7 of the Complaint, and therefore denies the same.

8. Defendant owes Plaintiff $

8.Answer: Paragraph 8 of the Complaint states a legal conclusion for which no answer is required. To the extent that an answer is required, Defendant denies the allegations of Paragraph 8 of the Complaint.

9. Allow Plaintiff to contact third party to collect judgement

9.Answer: Denied. Plaintiff has not won this chose in action against the Defendant and would not need to contact any third party to collect any judgment that has not been awarded by the court.

AFFIRMATIVE DEFENSES

First Defense

The Complaint is conclusionary and fails to state a claim against this Defendant upon which relief can be granted.

Second Defense

Plaintiff is not the legal holder of the alleged debt and therefore is not the real party in interest; this action should be dismissed for lack of standing.

Third Defense

Plaintiff’s complaint is not properly verified and is not grounded in fact because it does not exhibit the alleged contract the debt is based upon, a valid statement of account, nor any valid assignment that gives Plaintiff legal title to the claim.

Fourth Defense

Defendant caused no harm to the plaintiff.

Fifth Defense

Plaintiff’s Claim is barred by the statute of limitations.

Sixth Defense

Plaintiff in filing this Complaint has not produced a copy of the executed agreement.

Seventh Defense

Plaintiff falsely represents the character, amount, and legal status of the alleged debt.

Eighth Defense

Plaintiff’s Complaint is not based on its personal knowledge of the alleged debt

Ninth Defense Plaintiff, prior to filing this Complaint, failed to provide proper validation notice pursuant to the Fair Debt Collections Practices Act, 15 U.S.C. 1692(g).

Tenth Defense

Defendant reserves the right to plead additional defenses (or cross-claims or counter claims) that may be identified during the Defendant's investigation and/or course of discovery.

respectfully submitted,

WHEREFORE, Defendant prays that this Court find judgment for Defendant,

deny Plaintiffs’ request for relief, deny Plaintiffs’ request for damages, deny

Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief whatsoever.

Defendant further prays that this Court hold that Defendant is the prevailing party,

and dismiss Defendant with prejudice.

my name here

Defendant, pro'se

address

phone

CERTIFICATE OF SERVICE

On July 01, 2013, I caused the foregoing instrument to be served by mailing a copy to all counsel of record in this case as indicated below:Attorneys name and address here

By Certified U.S. Mail, Return Receipt Requested By U.S. Mail.

My name here

[racecar]

Received the following within a week:Copy of account statement,Copy of Bill of Sale and Assignment

(showing sale of debt from cc company to Midland Funding)

It takes a lot more that that to win if you challenge them.

Get your answer filed with the court on time or they will win by default

[Huey Pilot]

This sounds like Danial N Gordon PC out of Eugene, Oregon and his standard cookie cutter summons/complaint. Racecar's answers work just fine. You have to immediately respond when you receive documents from them so you can use the time to your advantage. I would immediately send them Request for Production of Documents and maybe five or six requests for admission of trial-able facts. You then will narrow the discovery period they have to produce documents (and won't - they have to subpoena and/or buy) and have more time for motions and other filings prior to mandatory court adjoined arbitration. Midland is very beatable and they don't like people who fight back and cost them money.

 

HP

[racecar]

http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=cr&ruleid=supcr26

RULE CR 26 GENERAL PROVISIONS GOVERNING DISCOVERY

[BTO429]

Race car give you what you need

 

Always start with standing to sue, if they cannot prove they own the debt they have no standing to sue.

 

 

Your counterclaim should be fdcpa suit for misrepresenting the legal character of the debt.

[burdies4]

Racecar and all, THANKS so much for your help!  I will spend the next couple week researching all the great details you have provided. I can't thank you enough.

 

One last question, (based on the guidance in the answer, can I send this answer by CMRRR or should I find someone in the lawyers town to serve the Answer?)

[racecar]

Yes-Your serving the answers to them by certified mail return receipt requested.

[Anon Amos]

One last question, (based on the guidance in the answer, can I send this answer by CMRRR or should I find someone in the lawyers town to serve the Answer?)

Make sure you file the answer to the complaint with the court as well, and send a copy of that to the lawyer CMRRR. Your rules may state that you need to file a proof of service also, I don't know, I just wanted to make sure that you were not going to send a copy to the lawyer only without filing the answer with the court.

[racecar]

burdies4 Please tell us you filed your answer with the court and sent a copy to the law firm.

[burdies4]

Hi all, I'm back and could use some direction here... BTW, to answer the last post, I did as instructed and filed the answer with the court and sent a copy to the law firm. Since then things have been crazy with a terminally ill immediate family member who passed away in October. I've been distracted and it appears I have missed a deadline.

 

I received a response from the lawyer in August "Plaintiff's first request for production of documents"  this document is requesting me to produce documents relevant to the matter. I did not respond to this request. (it asked for any and all documents defendant provided to "original creditor" showing they failed to perform their legal obligation under the terms and conditions of the contract described in the plaintiffs complaint). Wouldn't that just confirm the debt? As I said I missed this response deadline.

 

Now I have received a Note for Motion Docket, Notice of Hearing, Motion for summary judgement with attached exhibits, cost bill, order of money judgement award and certificate of mailing. This is document has a date requested for hearing/motion with a date and time. I have never received anything from the court. Should I go to court? Wouldn't the court notify me of a scheduled hearing?

 

Attached to the above notice are the documents from the lawyers office, copies of a years worth of statements, bill of sale agreement, Asset schedule, the card agreement (does not have signatures), summons, and my response.

 

Not sure what to do next. Any direction you can provide would be greatly appreciated.
 

[Spikey]

Check your courts website and see if the date and time for the hearing are listed. I'd assume that the moving party is required to notice the opposition, not the court.

 

What you need to do ASAP is prepare and file with the court an opposition to their motion for summary judgement. You don't need to win the case with your opposition, just raise issues that require a trial. 

[burdies4]

I checked the court website, I can see the case however the status section has no information and no court time/dates. The notification sent to me by the attorney was initially sent Certified mail. I didn't sign for it so it was sent back and they just first class mailed it to me and threw the US post office signature form (not signed) in with the package.

 

Where should I go to the the details for submitting the "opposition to their motion for summary judgement"? Do I need to do this before the court appearance or can I submit this at the hearing?

 

Sorry, I feel so over my head.

[Spikey]

Generally speaking an opposition to motion for summary judgement needs to be filed prior to the hearing. The time frame is dependent on your state and local court rules. Assuming I've found the correct rules: http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=sup&set=CR&ruleid=supcr56

 

 

The adverse party may file and serve opposing affidavits, memoranda of law or other documentation not later than 11 calendar days before the hearing.

 

A good starting point would be to post a redacted version of their motion so we can help you pick apart their claims.

[burdies4]

hmmmm.. the hearing is this week. so it sounds like I missed the boat?  

 

Quote

 

The adverse party may file and serve opposing affidavits, memoranda of law or other documentation not later than 11 calendar days before the hearing.

[burdies4]

Question: "The motion and any supporting affidavits, memoranda of law, or other documentation shall be filed and served not          
later than 28 calendar days before the hearing." 

 

This was post marked exactly 28 days prior to this court scheduled hearing from out of state. Not sent Certified Mail, just first class mail. Is that acceptable?

 

Sounds like I might not have recourse here? I still haven't been able to confirm the actual hearing time/date since it's not on the court website. I guess I need to call and check.

[Spikey]

Question: "The motion and any supporting affidavits, memoranda of law, or other documentation shall be filed and served not          

later than 28 calendar days before the hearing." 

 

This was post marked exactly 28 days prior to this court scheduled hearing from out of state. Not sent Certified Mail, just first class mail. Is that acceptable?

 

Sounds like I might not have recourse here? I still haven't been able to confirm the actual hearing time/date since it's not on the court website. I guess I need to call and check.

 

You need to check your local rules, certified typically isn't required. 

 

As far as the MSJ (Motion for Summary Judgement), you're going to need to try to plead your case at the motion hearing and hope the judge will listen.

[burdies4]

I looked in the local court rules and not finding any additional detail regarding any local timing differences from state rules or delivery requirement rules at the local level different from State level. Sounds like I have no recourse with the lawyer.

 

I am just trying to understand where I'm at here, based on your best understanding of the situation. Since the timeline for my hearing is less than 11 days and there doesn't appear to be any requirement on the part of the attorney to provide me with notices via CMRRR, does this mean my next step is to verify with the court the hearing time and date? Do I just show up there at this point in case they don't show up? Do I just wait to hear back from the court and prepare to make payment?

[Spikey]

Definitely verify the hearing date and time with the court. Assuming the date and time are correct, you should be there. If you don't show, I would expect the judge will give them summary judgement against you. Even if you do show, the judge may still give it to them anyway since you didn't oppose the motion in writing. I would suggest preparing a defense to the MSJ anyway and try to get the judge to listen to an oral argument. You just may have a reasonable judge that will allow it. You still may lose anyway but there's no reason not to make an attempt.

[BTO429]

Since they are suing for breach of contract they need to produce the contract that you signed. Do not let them stray away from producing the contract into an implied theory of contract such as account stated,,,,

 

Plaitiff may not abandon the contract for a more lucrative judgement on an implied contract theory.

A plaintiff may not abandon its expresscontract theory in order to seek greater relief on an implied or quasi contractual theory. holding that recovery on quantum meruit is not allowed when there is an express contract covering the subject matter of the suit. The entire cause was remanded to the trial court with instructions limiting Truly's recovery to that which Truly could plead and prove under the written contract.

 

Truly v. Austin 744 S.W. 2d 934 (1988)

I know this is a Texas case but it gives you and idea how contracts work. If they claim breach of contract then the contract governs, they can not use a quatmun meruit theory such as account stated to prove their damages, the contract its self will govern. If they have no contract they have no case.

 

Quantum Meruit means for as much as one has earned. A quasi contract is an implied contract. A person can not claim a breach of contract and then use an implied theory to prove his relief requested.

 

Black Lake Pipeline v. Union Construction Co., Inc

As a general rule, a plaintiff who seeks to recover the reasonable value of services rendered or materials supplied will be permitted to recover in quantum meruit only when there is no express contract covering those services or materials

Account stated is a quasi contractual theory, the plaintiff must not only show that he has rendered a partial performance of value, but must also show that the defendant has been unjustly enriched and the plaintiff would be unjustly penalized if the defendant were permitted to retain the benefits of the partial performance without paying anything in return

 

 

Recovery in quantum meruit is based on equity. It is well-settled that a party seeking an equitable remedy must do equity and come to court with clean hands.

 

In order to beat a summary judgment all one needs to do is show that there are genuine issues of fact that have not been settled. ie. account balance, was there a contract, is the plaintiff the real party in interest, does the plaintiff own the debt, etc etc

[BV80]

@BTO429

 

Since they are suing for breach of contract they need to produce the contract that you signed.

 

No.  A signed contract is not the only thing that can prove a contract.  In fact, there usually is NOT a signed contract in credit card cases.  Courts have ruled that actions can imply a contract.

 

 

To prevail on its claim that Kaymaz is responsible for the debt, Citibank must demonstrate the existence of a contract with Kaymaz concerning the card on which the debt accumulated. A valid contract requires an objective manifestation of mutual assent to its terms, which generally takes the form of offer and acceptance. Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. Yakima, 122 Wn.2d 371, 388-89, 858 P.2d 245 (1993). The offeror is the master of the offer and may propose acceptance by conduct. Discover Bank v. Ray, 139 Wn. App. 723, 727, 162 P.3d 1131 (2007).

 

Proof of charges and payments can be evidence of a contract.

 

 

 

[burdies4]

BV80 or others..."No.  A signed contract is not the only thing that can prove a contract.  In fact, there usually is NOT a signed contract in credit card cases.  Courts have ruled that actions can imply a contract."

 

Does this mean that if the lawyer can produce a years worth of account statements that is all they need to prove a contract?

 

Trying to figure out my next step here... Thanks!

[Spikey]

@BV80 I agree with you but it's more dependent on the state rules than anything else.