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Sued in California by MF Need Advice (Rule 3.740)


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Let me start with a big thank you to all who contribute to this forum.

 

Next, I will answer the 19 questions:

 

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.)

    - Hunt & Henriques

3. How much are you being sued for?

    - $2200 +

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

    - Chase (Washington Mutual)

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

    - Summon served 

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

    - In person

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

    -  Yes

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

    - They had sent a dunning notice

    - I requested DV they complied within statutory time.

    - They sent an intent to sue letter

    - I replied that I would seek ARb through JAMS

    - They initiated negotiations for mutual seetlement (i offered $900) they wanted $1000

    - Received summons in the middle of negotiations (yesterday afternoon)



9. What state and county do you live in?

    - California, Fresno

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

    - October 2011

11. What is the SOL on the debt?

    - 4 years in California

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)

    - Complaint filed: 07/10/13; Summons & Complaint served: 02/09/13
    - Summons Filed 07/22/13


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.)

    - Yes

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.

    - 30 days (10/02/13)

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.

    -I am not sure I believe it is Breach of Contract, Common Counts.

what seems to be the complaint shows Complaint-Contract. I have a copy of it below.

   - It also says something about Rule 3.740 Collections

   - Under "Cause of Action - Common Counts" CC1(a1&2) (b1,3,4,5) CC2 $2288.39, CC4 Other: Plantiff Purchased The account from the original creditor ....

 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.

    - No.  The complaint is not verified.

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.

There is no evidence with the summons or complaint.

 

Any advice?

 

Summons.pdf

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A little background:

 

A few months ago I started researching to try to get my finances and credit straight. I came across this great site and it as been a huge help if only to educate me on how thinks work and what kind of things i can do to make things better.

 

 Due to the education I received from this site I was able to do a few things. Such as get my credit reports make disputes etc.

 

When I received a dunning notice from Midland regarding the above mentioned alleged debt I knew what to do, so I immediately sent them a DV letter via CMRR.

 

 I received  copies of past statements with my name on them, and a generic "bill of sale" from Chase to Midland regarding some "accounts".

 

Later on I received from Hunt & Henriques an Intent to Sue letter. Based on some of the information I gathered from this site  I responded indicating  that though I vehemently deny any debt I would consider a settlement and if i was sued I would move to remedy this via ARB through JAMS. Hunt & Henriques responded that they would be interested in a settlement rather incur costs. I eventually talked them down to $1000 (my offer was $900) but I stuck to my guns to get the other $100. It seems that they were being duplicitous because while we were negotiating they were already filing.

 

While I awaited their answer for the $900, I received my summons (yesterday). I immediately contacted them via email and politely informed them that I was disappointed and that I rescinded any offer previously made. Just now while typing this they responded with a generic "call us if you have any questions".

 

From what I can so far make out (I am flummoxed) I need to file a response within the allowed time. It seems that the correct form to file would be PLD 050. 

 

What I am most confused about, emphasis on MOST, is which defenses I should list. The reason I am confused is because I still don't know under what basis I was sued (commom counts, account stated, Rule 3.740, etc.).

 

Any advice?

 

Thank you

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So after reading the "Complaint-Contract" it seems page two paragraph 8 specifies that this is a "Common Counts" case.

 

Am I correct?

 

If I am, would this be a case where I would use an affirmative defense regarding plaintiff lacking "standing"?

 

Calawyer are you around?

 

Is the BOP only for suits that are based on "Account Stated"?

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The BOP is for the vreach of contract, money lent and had, open book account.  I believe all those are in the common counts.  It is specifically NOT for account stated, and they will answer your BOP with the statement it is not proper because they are suing you on account stated.  But you just have to meet and confer and tell them it is proper on the other counts. ;)

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A BOP is appropriate for a breach of contract claim.  In addition, Midland will likely object or provide very few documents which will help when it sends discovery to you (see 1111girl's thread).

 

Consider alleging the statute of limitations if you believe it is possible that the complaint was filed late.  You don't need to worry so much about affirmative defenses since your main defense will be that Midland can't prove its case.  If you discover an affirmative defense during discovery that you did not allege, you can ask the court for permission to amend your answer to include it.  Permission is liberally granted absent some prejudice to plaintiff.

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Thank you for your imput 1stStep

 

 

The BOP is for the vreach of contract, money lent and had, open book account.  I believe all those are in the common counts.  It is specifically NOT for account stated, and they will answer your BOP with the statement it is not proper because they are suing you on account stated.  But you just have to meet and confer and tell them it is proper on the other counts. ;-)

 Hi Shellih98, thank you for your comment. If I understood you correctly when the complaint is a "common counts" complaint it implicitly includes the aforementioned (money lent and had, open book account, account stated) though not explicitly found on the complaint.

 

Therefore I should use the affirmative defense that 1stStep mentioned of "Lacks Standing to Sue", And as you mentioned send the BOP request if they object referencing "account stated" I would draft a M&C letter to explain that the other common counts would afford me the right to ask for the BOP. Is that correct?

 

A few more questions for all:

 

1- Once the complaint has been filed (and assuming "Common Counts" does include the aforementioned, money lent and had, open book account, account stated) can a plaintiff amend a complaint to remove the other causes and just leave the " account stated". Therefore rendering the BOP request a moot point?

 

2- When should the BOP request be made? I understand it will be done in the pre-trial stages. But should it be made at the same time as the answer is filed? or shortly after?

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Thank you Calawyer for your response.

 If in understood you correctly it would seem that:

 

-I should file the BOP but that Midland will most likely object and or will do whatever possible to provide as little as possible.

 

-Not worry too much about affirmative defenses. Rely on the fact that Midland will most likely be unable to prove its case.

 

I understand that affirmative defenses are defenses where the burden of proof is shifted from the plaintiff to the other side of the table (me). Is that also the case with the "Lacks Standing to Sue" defense?

 

Thank you all in advance.

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You serve the BOP on plaintiff but do not file it with the court.  I think it is a good idea to do so as soon as you can.

 

Affirmative defenses are reasons why you should win even if the facts alleged in the complaint could be established.  If plaintiff alleges that it is the assignee of Chase, and you deny that in your answer, plaintiff must prove that issue at trial.  It does no harm to allege that plaintiff lacks standing as an affirmative defense, but it is plaintiff's burden to prove it when you file a general denial or deny that paragraph of the complaint.  The burden does not "shift to you" to prove that element simply because you allege it as an affirmative defense. 

 

Here is a nice short description of affirmative defenses in California:  http://www.saclaw.lib.ca.us/pages/affirmative-defenses.aspx

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You serve the BOP on plaintiff but do not file it with the court.  I think it is a good idea to do so as soon as you can.

 

Affirmative defenses are reasons why you should win even if the facts alleged in the complaint could be established.  If plaintiff alleges that it is the assignee of Chase, and you deny that in your answer, plaintiff must prove that issue at trial.  It does no harm to allege that plaintiff lacks standing as an affirmative defense, but it is plaintiff's burden to prove it when you file a general denial or deny that paragraph of the complaint.  The burden does not "shift to you" to prove that element simply because you allege it as an affirmative defense. 

 

Here is a nice short description of affirmative defenses in California:  http://www.saclaw.lib.ca.us/pages/affirmative-defenses.aspx

Thank you I will look over that information.

Thank you for the info, I understand I must serve the BOP and not file it.

 

Shortly I will post up a rough draft of my response for anyone who would be willing to give it a look over.

 

I appreciate everyone's responses and welcome any additional information.

 

Thank you.

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  • 3 weeks later...

Just wanted to Update you all on my case I will be filing my denial this week. I already have it ready since it is just a general denial. 

 

However i was looking at my local courts history with similar cases and they all seemed to be filed under (09 Collections) while my case is file as an 07 Business Tort. Can some one help me understand the difference?

 

Do different rules apply to Business Tort?

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Just wanted to Update you all on my case I will be filing my denial this week. I already have it ready since it is just a general denial. 

 

However i was looking at my local courts history with similar cases and they all seemed to be filed under (09 Collections) while my case is file as an 07 Business Tort. Can some one help me understand the difference?

 

Do different rules apply to Business Tort?

 

My guess is that plaintiff didn't check the right box.

 

It will likely  get straightened out at the CMC.

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I called the court regarding my previous question and the clerk clarified that this was a collections case and not a Business Tort. It seems that the Business tort Designation was an error on the website. I can not find anything in my paperwork that show it is a 07 Business Tort case.

 

I do have a different question and hope someone can help. I noticed online after reading some of the judgments  the plaintiff in some cases filed for a "Declaration for Reduction of Fee" and their filing fee was reduced from $225 to $181. I can not find the form they used, can any one provide any insight on this and maybe have a link or copy of a similar form for California?

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http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/

Read this guys thread. A lot of what your going to need is in it. I think there is also the form for a fee waiver.

HomelessinCaliformia has a great thread I have read it from beginning to end. A lot of what I have learned has come from this thread. I will look over it once more to see if I can find that fee waiver. In my case though I don't think I would qualify for a  fee waiver I was rather more interested in a fee reduction. I did not know such an option was available (still don't know). But after seeing the following fee reduction given to Midland I was became immediately interested.

 

http://banweb.co.fresno.ca.us/cprodsnp/ck_public_qry_doct.cp_dktrpt_frames?backto=P&case_id=12CECL07008&begin_date=&end_date=

 

Does this ring a bell for anyone?

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Fee Reduction - The JDB gets a fee reduction because they are seeking an amount that would normally be filed with Small Claims, where the fees are lower, but because of their 3rd party status they are required to file in Civil Court.

 

In my case the fee reduction automatically applied to me as well, didn't need to apply for it.

 

Defendant can apply for a fee waiver -so as not to pay the filing fee at all - always worth a shot.

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Fee Reduction - The JDB gets a fee reduction because they are seeking an amount that would normally be filed with Small Claims, where the fees are lower, but because of their 3rd party status they are required to file in Civil Court.

 

In my case the fee reduction automatically applied to me as well, didn't need to apply for it.

 

Defendant can apply for a fee waiver -so as not to pay the filing fee at all - always worth a shot.

You are exactly right RyanEX. I contacted the court clerks office and they indicated something similar (though less clearly) which seems to not apply in my case.

I guess I could give the waiver a try but I don't want to upset the judge if later he finds that I can afford it (it seems their definition of "afford" is different than my own.)

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You are exactly right RyanEX. I contacted the court clerks office and they indicated something similar (though less clearly) which seems to not apply in my case.

I guess I could give the waiver a try but I don't want to upset the judge if later he finds that I can afford it (it seems their definition of "afford" is different than my own.)

I think the clerk reviews it and makes the decision.

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