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Midland Lawsuit in California - Help! Court Date Set


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Here we go!

 

I received a notice from the courthouse saying a trial date has been scheduled for later this month.  I actually wasn't expecting this so soon because I just responded to Midland Funding's demand for production of documents, requests for admission, and special interrogatories about a week ago.

 

I've moved out of California, but the court participates in the CourtCall system.  I'm hoping to schedule to appear by phone.

 

What is the best defense strategy at this point for lack of standing?   #19 below spells out the documents Midland sent in response to my RFP. When it comes to the sale/transfer of all right, title, and interest to the account, I believe the documents they provided are insufficient.  Should I do a court appearance by phone and argue that Midland has not provided evidence that substantiates their ownership of the account?  Should I send a follow-up RFP asking for the documentation that's missing?  Can I file some kind of motion with the court to tear down their evidence?

 

My husband is still in California, so I'm able to sign documents, send them to him overnight, and have him mail things on my behalf or file papers with the court in person.

 

My sincere thanks to everyone in this excellent community who have been helping me through this!

 

 

 

1. Who is the named plaintiff in the suit?  Midland Funding.  They claim all right, title, and interest to the account was sold to them.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)  Midland Funding, no outside lawyer.

3. How much are you being sued for? $6,000+

4. Who is the original creditor? (if not the Plaintiff)  Chase Bank USA, N.A.

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

6. How were you served? (Mail, In person, Notice on door)  Left summons at a commercial address where I have a mail box

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?   None.  I've since seen copies of their collection notices.  However, the notices were mailed to an incomplete address - a commercial address where I have a mailbox without a mailbox number.

9. What state and county do you live in?  Los Angeles, CA

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

11. What is the SOL on the debt?  SOL has passed.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). I filed a General Denial and sent a RFP to the Plaintiff (Midland).  They responded by sending me documents outlined in #19 below.  Midland sent a demand for production of documents, requests for admission, and special interrogatories.  I responded to these in late July.

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

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.  I never received any collection notices from Midland.

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.  I responded to the suit in time by filing a General Denial.

16.We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or on an open book account, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.    The cause of action is account stated: "... became indebted on the Account to Plaintiff in the sum of $---  on an account stated in writing by and between Plaintiff and Defendant in which it was agreed that Defendant was indebted to Plaintiff."

17.Is the complaint "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.   The summons doesn't include a signed declaration.

18.Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?  No.

19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.   No evidence was sent with the summons.  In response to my RFP, they provided me with an affidavit regarding the sale of a pool of accounts from Chase to 'Collection Agency A' and a bill of sale for a pool of accounts from 'Collection Agency A' to Midland.  There is no bill of sale or backup documents regarding the initial sale of the pool of accounts by the original creditor to the collection agency who originally purchased them.

 

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I would PM Calawyer to take a look and help. Find out how soon before trial you have to file motions. Every state is different. If you have time I would file a Motion in Limine to strike their bogus BOS, CC statements and affadavits. The more you get rid of the less you fight at trial.  Also is thier claim breach of contract??  Yes, Then at trial where is the signed contract. I would reach out for help from your state.

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Is that all they sent you? Just a bill of sale and affidavit to that bill of sale? Also was it a credit card account? Calif. sol is 4 years unless you can get a court to recognize another states sol like if the cc was out of Delaware. Did you use sol as an affirmative defense?

Did you ever request a Bill of Particulars? Did they send an affidavit from someone testifying to the accuracy of the account? (A ccp98). Did they send or did you request a ccp96 ?

What date is the trial?

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I would PM Calawyer to take a look and help. Find out how soon before trial you have to file motions. Every state is different. If you have time I would file a Motion in Limine to strike their bogus BOS, CC statements and affadavits. The more you get rid of the less you fight at trial.  Also is thier claim breach of contract??  Yes, Then at trial where is the signed contract. I would reach out for help from your state.

 

I found the following information online.  #10 is Motions in limine, so it appears I had 25 days before trial.  This time has already elapsed.  By the time I received the Notice of Trial/Hearing, I would have only had a couple days to put something together.

 

What is the likelihood of my being able to have the court date postponed?

 

2013 California Rules of Court

Rule 3.1548. Pretrial submissions

 

A. Service

Service under this rule must be by a means consistent with Code of Civil Procedure sections 1010.6, 1011, 1012, and 1013 or rule 2.251 and be reasonably calculated to assure delivery to the other party or parties no later than the close of business on the last allowable day for service as specified below.

B. Pretrial exchange

No later than 25 days before trial, each party must serve on all other parties the following:

(1)1pixel.gifCopies of any documentary evidence that the party intends to introduce at trial (except for documentary evidence to be used solely for impeachment or rebuttal), including, but not limited to, medical bills, medical records, and lost income records;

(2)1pixel.gifA list of all witnesses whom the party intends to call at trial, except for witnesses to be used solely for impeachment or rebuttal, and designation of whether the testimony will be in person, by video, or by deposition transcript;

(3)1pixel.gifA list of depositions that the party intends to use at trial, except for depositions to be used solely for impeachment or rebuttal;

(4)1pixel.gifA copy of any audiotapes, videotapes, digital video discs (DVDs), compact discs (CDs), or other similar recorded materials that the party intends to use at trial for evidentiary purposes, except recorded materials to be used solely for impeachment or rebuttal and recorded material intended to be used solely in closing argument;

(5)1pixel.gifA copy of any proposed jury questionnaires (parties are encouraged to agree in advance on a questionnaire);

(6)1pixel.gifA list of proposed approved introductory instructions, preinstructions, and instructions to be read by the judge to the jury;

(7)1pixel.gifA copy of any proposed special jury instructions in the form and format described in rule 2.1055;

(8)1pixel.gifAny proposed verdict forms;

(9)1pixel.gifA special glossary, if the case involves technical or unusual vocabulary; and

(10)1pixel.gifMotions in limine.

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Is that all they sent you? Just a bill of sale and affidavit to that bill of sale? Also was it a credit card account? Calif. sol is 4 years unless you can get a court to recognize another states sol like if the cc was out of Delaware. Did you use sol as an affirmative defense?

Did you ever request a Bill of Particulars? Did they send an affidavit from someone testifying to the accuracy of the account? (A ccp98). Did they send or did you request a ccp96 ?

What date is the trial?

 

It's a credit card account.

 

They sent me an affidavit regarding the sale from the Chase Bank to the collection agency who originally purchased the pool of accounts.  Then they provided a bill of sale between this collection agency and Midland.  There is a computer printout of my account information attached to the bill of sale, but this was genrated by the collection agency who sold some accounts to Midland.  There is no backup documentation or bill of sale furnished by Chase Bank.

 

The SOL for Delaware is 3 years.  The suit was filed prior to this time.

 

I never requested a Bill of Particulars.  I sent them an RFP.

 

The only affadavit I received concerned the sale of a pool of accounts from Chase Bank to the collection agency that originally purchased them.  I never requested or received a CCP96.

 

The trial is less than 20 days away.

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Hot in Az -Thanks for recommending I PM Calawyer about this.  He's been a tremendous help!

 

It turns out the Notice of Trial/Hearing I received from the court reflected an incorrect date.  My notice said the trial was in 2013.  When I called Midland's attorney to ask if they would stipulate to a continuation, based on the fact that I'm out of state, they said the trial wasn't until 2014.  I phoned the court and confirmed the trial was more than a year away.  (They're sending me a corrected notice in the mail).

 

Now I can breathe a huge sign of relief!

 

I'm not sure if my next move should be a to send Midland a follow-up RFP to request copies of the missing documents regarding chain of ownership.  Like most people who end up on the receiving end of a Midland lawsuit, they provided me with a couple affidavits that aren't admissible at trial.  My other option is to file a Motion to Strike to start attacking their evidence.

 

What do you think?

 

 

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motion to strike would be premature as the affidavits are not admitted into evidence yet, I would request a BOP based on being sued for open book account.  They will give you guff about providing that.  And yes follow up on your RFD's, if they didn't send what you asked for, do a meet and confer, if nothing, file a motion to compel.

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This is where the fork in the road happens. You have two choices; you can either hammer them till you get the docs you want and if you don't you can get the judge to prevent them from add new ones later, or you can play stupid and just fall off their radar and then hit them before trial with the CCP 96 that will lock them into their evidence they can use.

The first method is nice because they will have to spend time and money on your case. Something they don't want to be doing. However you are telling them you know their evidence sucks and in a way you're showing them you know where the holes are. Odds are they don't want to spend the money to get more docs to prove they own the acct but they could and it would hurt your case.

By using the second one (this is the route I went) you will be drawing little attention to you case thus they will be less likely to be trying to get documents to beef up the case. The potential problem is that if they have docs that they didn't send you in your RFPOD then when they respond to your CCP 96 you could get docs you didn't know they had that could hurt your case.

Any docs you send them telling them thy need to send you xxxxxx docs that they haven't sent you so far will be met with objections 99% of the time. So you will have to send a M&C and then a MTC. They will make you work for sure. That's why I just called it quits and waited till the CCP 96 time.

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