HelpNeededInca

Midland Funding At it Again! Need some Guidance PLEASE!!!

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Ok, here we go. So In june I received a summons in my door from Midland about a Chase Credit card I had somewhere around 06-07. Unforuntately I lost my job and was no longer able to afford payments on the card back then. Needless to say, it went to collections then on to Midland.

 

When I was served, I was gracious enough to find resources much like this blog in order to properly respond seeing that I don't have the funds or resources to afford an attorney. Here are my case details;

 

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.) No Law Firm in particular, about 4 different attorney's names.

3. How much are you being sued for? 3496.63

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

5. How do you know you are being sued? (You were served, right?)     I was served at my home, not personally, it was left in my door.
  
6. How were you served? (Mail, In person, Notice on door)   Notice on Door
  
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?     I don't recall. I think they may have mailed things out to me but, i've received so many collection notices I honestly cannot remember if they did or did not.

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

   10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  Probably back in 06 or 07. I have not made a payment to Chase or to Midland since that time.

11. What is the SOL on the debt? To find out:   4
  
Statute of Limitations on Debts

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).  Pending  

 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, I filed an Answer and mailed a proof of service. That is all.

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? The summons was filed on 6/21, I responded with  my answer (General Denial) on 6/28. I had 30 calendar days to respond and did so as requested. I was unaware up until now, but a hearing has been set sometime in May of next year.  As far as my charges, It seems they are just charging me with non-payment of a debt within the last 4 years which is not true.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They included an Exhibit A showing a notice of new ownershp and pre-legal review, which i have no recollection of recieving, in addition, it doesn't have the correct unit number when it was sent.

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

====================================================

 

I have now received 3 documents and dont know the first place to begin;

 

1) Plaintiffs request for admissions to Defendant, Set No. One

2) Plaintiffs Demands for Production of Documents to Defendent, Set no .one

3) Plaintifs Special Interrogatories to Defendent, set no. one.

 

Any help would be GREATLY appreciated! Are any of the responses to the documents listed above time sensitive?

 

Thank you advance, and Bless those out there that help people from the kindness of their hearts!

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You need to find out when your last payment was made for sure.  You can check your bank records, or look on your credit report for the date it says last payment was.  If it  has been more than 4 years, you need to raise this defense.  California has some laws that I am not familiar with, I am sure @Seadragon or @calawyer could answer this, but I believe Ca has what you call a demurrer that may be able to be filed, but I don't know.  At any rate

A statute of limitations for debt is an affirmative defense a defendant can use if the time for filing an action (a lawsuit) has exceeded what the state allows.  the passing of a statute of limitations does not prevent a plaintiff (a collection agent or original creditor) from filing an action. If the statute of limitations has passed, the defendant  must raise this defense before the conclusion of the trial. The court will dismiss the case if it accepts the statute of limitations defense.

 

Google and start reading California's Rules of civil procedure.  Did they not write out the cause of action on the summons? That would be something like Breach of contract, common counts, account stated, anything like that?

Your step at this moment would be to request a Bill of Particulars. (unless the only cause of action is the account stated)  I would send that asap. Search this forum for a sample of that request.

 

If you need help in answering the requests they sent you, post them here, and we will help you answer.

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What amazes is how such wonderful people out there provide advice just to help people in their struggles. @shellieh98 , you have no idea how grateful I am to you and others for responding.

I have a an experian credit report that shows when it was onwed by Chase, I made a payment in Jan 2010. That can't be true though because prior to that, I hadn't made a payement since Aug/2008. In addition, it shows that Midland took over the account in 5/12 and needless to say, no payment has ever been made to them.

I do need help respoding to what they sent me, and I also need help finding the appropriate forms to mail back to them.

Thanks in Advance

Me

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Welcome.

 

Look at the proof of service on the discovery that Midland sent you.  You have 30 days from the date of service to respond.  You can add 5 days if the requests were served by mail.  By "responding", I mean you have to type a written response and put it in the mail with a proof of service on that day.

 

I would send a BOP immediately.  Midland must respond in 10 days.  If Midland doesn't respond or doesn't give you much, you will have an excellent objection to Midland's discovery on that ground.  See 1111girl's thread for exact language you can use.  There are also many many exemplars of responses to discovery on this board.  Just search for Midland and request for production or RFP and you will probably find responses to the same discovery you are working on.

 

Good luck.

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Here http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_id=1721

is a blank pleading paper for california that you can use to put your answers to the discovery requests in.  Type out each  of these items

 

1) Plaintiffs request for admissions to Defendant, Set No. One

2) Plaintiffs Demands for Production of Documents to Defendent, Set no .one

3) Plaintifs Special Interrogatories to Defendent, set no. one.

 

word for word and we will help you answer.

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Thanks for the advice to both @calawyer and @shellieh98

When requesting a BOP (Bill of Particulars), am I to use a specific document? Or the pleading paper you attached in your other post?

Thanks,

Me

Welcome.

 

Look at the proof of service on the discovery that Midland sent you.  You have 30 days from the date of service to respond.  You can add 5 days if the requests were served by mail.  By "responding", I mean you have to type a written response and put it in the mail with a proof of service on that day.

 

I would send a BOP immediately.  Midland must respond in 10 days.  If Midland doesn't respond or doesn't give you much, you will have an excellent objection to Midland's discovery on that ground.  See 1111girl's thread for exact language you can use.  There are also many many exemplars of responses to discovery on this board.  Just search for Midland and request for production or RFP and you will probably find responses to the same discovery you are working on.

 

Good luck.

Thank you for responding. In the package I received last night, there was no official proof of service, just the 3 documents (Plaintiff's Special Interrogaties to Defendant, set no. 1, Plaintiff's Demands for Production of Documents to Defendants, set one and Plaintiff's request for admission to defendant, set no. one.

Do each document have a standard 30 days to respond from last night when I received them in the mail?

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You need to find out when your last payment was made for sure.  You can check your bank records, or look on your credit report for the date it says last payment was.  If it  has been more than 4 years, you need to raise this defense.  California has some laws that I am not familiar with, I am sure @Seadragon or @calawyer could answer this, but I believe Ca has what you call a demurrer that may be able to be filed, but I don't know.  At any rate

A statute of limitations for debt is an affirmative defense a defendant can use if the time for filing an action (a lawsuit) has exceeded what the state allows.  the passing of a statute of limitations does not prevent a plaintiff (a collection agent or original creditor) from filing an action. If the statute of limitations has passed, the defendant  must raise this defense before the conclusion of the trial. The court will dismiss the case if it accepts the statute of limitations defense.

 

Google and start reading California's Rules of civil procedure.  Did they not write out the cause of action on the summons? That would be something like Breach of contract, common counts, account stated, anything like that?

Your step at this moment would be to request a Bill of Particulars. (unless the only cause of action is the account stated)  I would send that asap. Search this forum for a sample of that request.

 

If you need help in answering the requests they sent you, post them here, and we will help you answer.

Hi @shellieh98,

I read through my original summons sent to me back in June and the First Cause of Action is the account stated and reads as follows;

On the first cause of action:

1. For the unpaid balance of 34--.--

2. Cost of Suit and

3. Such other relief as the court may deem just and proper.

In my answer back to them, I filed a general denial with the follwing verbiage

Plaintiff has failed to state facts sufficient to state a cause of action against Defendant.

Plaintiff's claim is barred by the statute of limitations.

Plaintiff lacks standing to bring this action.

Plaintiff is barred by the doctrine of estoppel due Plaintiffs acts and/or omissions.

Plaintiff is barred by the doctrine of laches due to Plaintiff's acts and/or omissions.

Plaintiff is barred by the doctrine of unclean hands due to Plaintiff's acts and/or omissions.

Plaintiff has a duty to mitigate its damages, if any, and failed to do so.

Plaintiff's recovery would unjustly enrich Plaintiff's at the Defendant's expense.

Plaintiff's recovery is barred by the doctrine waiver due to Plaintiff's acts and/or omissions.

Plaintiff failed to perform under the agreement with Defendant.

Plaintiff failed to perform all conditions precedent.

Plaintiff's acts and/or omissions violate the Rosenthal Act and the Fair Debt Collection Practices Act

Defendant reserves the right to amend, modify, supplement and otherwise change this answer and the foregoing affirmative action defenses based upon legal theories, facts and circumstances, which the courts deems just and proper.

I also prayed that the plaintiff take nothing, for cost of suit.

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yes you have 30 days and must respond to all 3 by then.  So type them out so we can help you answer.

 

Here is a BOP for you to send them, fill in information according to your case.  Send it to the attorney for midland, Certified Mail Return Recipt Requested.  Send any and all coorspondence to them in this same way in the future, keep the green slips you get back.  You do not file this with the court at this time, but keep a copy for yourself.

 

 You need to change these charges in this BOP to your charges. 

http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_id=992

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oh wait.  Is account stated the only cause of action?  Is there anything in there about common counts, money lent, money recieved, open book account?  They don't have to give you a BOP for charges of account stated, so if that is  the only cause, it wont do you any good to send it.

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So I am at work right now, so I can't help you with discovery requests just now, others may jump in.  You need to ask for documents, there is a list, but specifically the document that shows last payment on account.  They say june 2010, but that could just be some sort of credit by the OC and not a payment at all.  They will need proof of that payment for your SOL defense.  We will get a list of document requests together, do a forum search for document requests to get started.

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oh wait.  Is account stated the only cause of action?  Is there anything in there about common counts, money lent, money recieved, open book account?  They don't have to give you a BOP for charges of account stated, so if that is  the only cause, it wont do you any good to send it.

Yes, the account is stated. In the original summons,here is the exact verbiage.

First Cause of Action (Account Stated)

1.Plaintiff realleges and incorporates by reference the foregoing paragraphs.

2. Within the last four (4) years, defendant became indebted on the Account to plaintiff in the sum of 34--.00 on an account stated in writing by and between plaintiff and defendant in which it was agreed that the defendant was indebted to plaintiff

3. Plaintiff has made demand on defndant for repayment of the account stated but defendant has failed and refused to pay the balance due.

4 As of the date of this complaint, there is a due and owing the unpaid sum of 3,4--.-- less credits or adjustments of 0.00.

Werefore, plaintiff prays for judgement against defendants as follows;

1. For the unpaid blance of 3400.00

2. Cost of suits and

3. Such other relief as the court may deem just and proper.

Now that we have confirmed that the account is stated, what do you suggest my next move should be?

Im a 27 year old who is completely in the dark about these types of issues and would just like my life back. I got this card as a college student and of course, through hard economical times, its lead me here.

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go right into discovery.  Request for documents, and answer their requests.  When you get back your document requests from them, we will go from there.  start reading your rules of civil procedure for california, especially the area on discovery, since that is what you are in right now.

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oh wait.  Is account stated the only cause of action?  Is there anything in there about common counts, money lent, money recieved, open book account?  They don't have to give you a BOP for charges of account stated, so if that is  the only cause, it wont do you any good to send it.

 

 

I think it will.  Plaintiff's refusal will help you respond to the discovery.

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From 1111girl's thread:

 

Defendant objects to this Request on the ground that the phrase "account" is vague and ambiguous in that the complaint does not attach any agreement relating to an alleged account such that defendant can respond. Defendant has propounded discovery upon plaintiff seeking, among other things, the identity of this alleged account and production of any agreement but plaintiff has not yet responded. Defendant reserves the right to supplement this response should such information become available.
 

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For your BOP, instead of :

 

a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff’s complaint is based

 

 

Say:

 

a Bill of Particulars setting forth all items and details of the account on which plaintiff’s complaint is based

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From 1111girl's thread:

 

Defendant objects to this Request on the ground that the phrase "account" is vague and ambiguous in that the complaint does not attach any agreement relating to an alleged account such that defendant can respond. Defendant has propounded discovery upon plaintiff seeking, among other things, the identity of this alleged account and production of any agreement but plaintiff has not yet responded. Defendant reserves the right to supplement this response should such information become available.

Hi calawyer,

Where do I put this verbiage from 1111girls thread? In my BOP?

Thanks,

Me

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go right into discovery.  Request for documents, and answer their requests.  When you get back your document requests from them, we will go from there.  start reading your rules of civil procedure for california, especially the area on discovery, since that is what you are in right now.

Ok, I will send a BOP and begin working on my discovery since it sounds as though the BOP could be helpful. I will wait until I get an answer from my BOP before I send my discovery request.

Am I missing anything?

Thanks,

Me

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Ok, I will send a BOP and begin working on my discovery since it sounds as though the BOP could be helpful. I will wait until I get an answer from my BOP before I send my discovery request.

Am I missing anything?

Thanks,

Me

You must respond to the discovery in time (see post 6 above).  But if your time to respond comes, and you have not received a response, use 1111girl's response if appropriate.

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yes you have 30 days and must respond to all 3 by then.  So type them out so we can help you answer.

 

Here is a BOP for you to send them, fill in information according to your case.  Send it to the attorney for midland, Certified Mail Return Recipt Requested.  Send any and all coorspondence to them in this same way in the future, keep the green slips you get back.  You do not file this with the court at this time, but keep a copy for yourself.

 

 You need to change these charges in this BOP to your charges. 

http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_id=992

 

 

For your BOP, instead of :

 

a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff’s complaint is based

 

 

Say:

 

a Bill of Particulars setting forth all items and details of the account on which plaintiff’s complaint is based

ok, I have made the appropriate changes and will mail my BOP certified mail first thing in the AM. I have one question though. In the attachment from Shellieh, the sample BOP was not on Pleading paper. Will that be a problem?

Please advise?

Thanks,

Me

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I have to admit @shellieh98 and @calawyer, doing all this stuff really intrigues me about our legal system with respects to collections and credit cards.<br /><br />Thankfully there are people out there like you to help, but I can only imagine how many people out there don't even think to find out information about this stuff. They just allow these attorneys to take to them to the bank, as if you haven't already been there which is why they are sueing you!<br /><br />It really makes me want to become a paralegal or something in law to help people as you guys are doing with me!<br /><br />Anyway, lets get to my discoverys so i can send those off!

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Plaintiff's Demans for Production of Documents to Defendant, set No. one<br /><br />The first 4 pages are basically titled : Definitions and instructions. (Do you need me to type that out here in the post?, if so let me know and I will.)<br /><br />Under the subject line : "Documents to be produced" reads the following;<br /><br />1. Any and all documents that refer or relate to credit cards issue to you by chase bank usa, na..<br />2 Any and all documents that refer or relate to a credit card assigned by chase bank usa. na from oct 6, 2006 - nov 30, 2009 for account number xxxxxxxxxx<br />3.Any and all documents that refer or relate to transactions intiatied by you on a card assigned by chase bank usa, na bearing account number xxxxxx from oct 06 06 - nov 30 09<br />4.Any and all documents that refer or relate to payments by you or chase bank usa, na that were to be applied to the oustanding balance on a chase bank usa na credit card<br />5 any and all documents that refer or relate to correspondence sent by you to chase bank usa, na, from oct 06 06 to nov 30 09<br />6. Any and all documents that refer or relate to correspondence received by you from chase bank usa, that referenced credit card number xxxxxxxxx<br />7 Any and all documents that refer or relate to telephone calls made by you to midland credt management inc<br />8 any and all documents that refer or relate to telephone calls received by you from midland credit management inc.<br />9 any and all documents that refer or relate to correspondence receive by you from midland credit management<br /><br />signed by one of the several attorneys listed.<br /><br />Please advise on how i should respond to this.<br /><br />Thanks guys! you guys rock!<br /><br />-me<br /><br />@calawyer & @shellieh98<br />

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