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If the OP was solely sued for account stated, the OP needs to research the lack of standing to sue.

 

 

My guess is that account stated is not the sole allegation - Midland usually throws on breach of contract and unjust enrichment. If that's the case, then the OP needs to push the deficient response to the BOP.

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If the OP was solely sued for account stated, the OP needs to research the lack of standing to sue.

 

 

My guess is that account stated is not the sole allegation - Midland usually throws on breach of contract and unjust enrichment. If that's the case, then the OP needs to push the deficient response to the BOP.

I assume what you said it  true re breach of contract and unjust enrichment, which that one I don't know what that means, unjust enrichment.I have to re- look at my complaint to see if that is in there.

 

  Your statement "needs to push the deficient response to the BOP." So what does a real assignment of debt really look like and is there an example here any one can post that is a valid assignment of debt from  a JDB. I stated above exactly what I received.

 

As well, They have my account number and statements and what would I say when  the judge  asks you if this is your account? Do you owe the money?

I have been to court in this state on other issues and I see how some judges are here in California- some heavy handed. If the judge asks if this is your account and it has your name and address written all over it how do you proceed from there?

 

I understand that just cause they provide statements does not mean the amount owed is correct. Do they have to prove what the last payment was? It  is usually on the last statement they provide when the account was written off by the original creditor the bank.

 

Can you ask in court to verify what they purchased the debt for and ask for them to  prove it ?  If they got for pennies on the dollar , how is it that they never gave me a offer letter to settle for less- before sueing?

Where does it say if they bought the debt for lets say $500 on a 2K debt they are legally ablidged to expose that? What is it that makes them legally allowable to sue for an original amount owed if they bought the debt for less- They don't owe the bank  bank anything as the bank is washed their hands dry once they sell to a JDB?

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Many of these debts are purchased as non-recourse meaning that the bank truly washes their hands of the debt...even better, in the sales agreement, the OC won't even guarantee the accuracy of their own records.

 

You may need to get a hold of the sales agreement to see if that language is in the agreement.

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Many of these debts are purchased as non-recourse meaning that the bank truly washes their hands of the debt...even better, in the sales agreement, the OC won't even guarantee the accuracy of their own records.

 

You may need to get a hold of the sales agreement to see if that language is in the agreement.

Thanks so much that's my next project.

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Your statement "needs to push the deficient response to the BOP." So what does a real assignment of debt really look like and is there an example here any one can post that is a valid assignment of debt from  a JDB. I stated above exactly what I received.

Ask for the BOP, if they object to it, you send a meet and confer letter stating it is approipriate if your being sued on breach of contract, money lent, open book.  Give them 10 more days to produce it after the letter.

 

They need a bill of sale from the bank to them, an affidavidt to show they made that deal.  They need electronic records showing you were a part of that sale.  (that is why they send you a data sheet with your name and account number)  Then they need an affidavidt stating the records of your account are accurate.  This is where you fight them.  In order for it not to be a he said she said ideally they need it from a person that as part of their everyday job maintained those records who worked for the Original creditor.  But judges allow affidavits from the JDB saying it is part of their regular coarse of business, and the records are correct.  You have to be dilligent and dispute that.  You dispute the affidavidt so they have to produce the person to testify in court.  Most won't show unless they live close to you.  IN california they have to be 150 miles from your court to serve them, so they give you some bogus address to serve them.  If the witness doesn't show in court and you served them, or have documentation that they could not be served, then the case should be dismissed as long as you maintain your objection to their affidavidt.  If the witness does show, you question them on how they could possibly know the records are correct if they don't work for the OC.

 

On the bill of sale it usually has some wording about the bill of sale has no guarentees to the accuracy of the accounts except for what is in the purchase agreement.  You use that statement to maintain the records are not accurate, you thought you paid this debt off.  You also in your document requests ask for the purchase agreement if they have given you a bill of sale.  They will not give it to you, but if you can get a judge to compel them to provide it, they will more times than not dismiss, or not comply with that order, they will not give it up, and will object as trade secrets.  If they don't give it up, you can dispute, and preclude the bill of sale, then they have no way to prove assignemnt.

 

As well, They have my account number and statements and what would I say when  the judge  asks you if this is your account? Do you owe the money?

I have been to court in this state on other issues and I see how some judges are here in California- some heavy handed. If the judge asks if this is your account and it has your name and address written all over it how do you proceed from there?  If asked point blank, I would say "I had an account with OC once, I don't remember the account number.  If this is my debt, I am disputing the amount owed, accuracy of the records, and that they have a legal right to collect on it.

 

I understand that just cause they provide statements does not mean the amount owed is correct. Do they have to prove what the last payment was? It  is usually on the last statement they provide when the account was written off by the original creditor the bank. If the last payment was beyond 4 years and one month before they filed against you, then you would need to obtain your own records from the bank showing when the last payment was, so you could prove the out of statue of limitations defense.  It is not on the statement.  They may have it on a data sheet they usually send you to prove standing.

 

Can you ask in court to verify what they purchased the debt for and ask for them to  prove it ?  If they got for pennies on the dollar , how is it that they never gave me a offer letter to settle for less- before sueing?

Where does it say if they bought the debt for lets say $500 on a 2K debt they are legally ablidged to expose that? What is it that makes them legally allowable to sue for an original amount owed if they bought the debt for less- They don't owe the bank  bank anything as the bank is washed their hands dry once they sell to a JDB?

This is what discovery is for.  You need all your facts and objections before court, court will be just to hammer all the facts as they are presented, and rule on it accordingly.  They don't have to send you a letter before filing the law suit, and some JDB's go straight to suing if it is nearing the SOL, some even file past the SOL hoping for a default.  It is legally allowable to sue for the orginal amount because that is the business.  They bought bad debt, and they do it so they can collect what is owed, that is how they make money.  That is also why they settle for less, they only pay 1-10% of the debt, so anything over that 10% plus collection fees is profit.  Yes the bank is out of it after they sell it.

 

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Post #89 list what he received in a response to his BOP. They may have stated an objection, but they did produce what I would consider a sufficient response to a BOP, if it was mine. I would not press them for more information on the bill of sale (linking you to it), but instead use it against them (the fact that it is insufficient) when you motion to strike it (just before trial).  If you really do want to press them for further documentation, then I would send them discovery, request for production of documents. If it were mine I would learn how to attack what they have produced. They may come up with additional pages to the bill of sale later, showing a list of redacted accounts (with your ac # and name) on their own, I would not alert them and ask for it now.

 

You would also motion to strike the statements and anything else they produced (or will produce when you send them the CCP 96 witness and evidence request). To do this however, you will need to learn the rules of evidence that pertain to this.

 

Just my opinion.

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Also, REGARDLESS of what the cause of action is. or how many of them there are; I would research and attack standing.

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Question regarding Bill of Particluars- BOP. When you send this out and they send you back statements of your account (years worth) does the judge look at this as favorable to the plaintiff. As does the statement they send that could be showing the last payment on the account lets say in 2012 prove that that was actually the last payment enough for the judge- It would be hard for me to prove my last payment if I cant find in records as checking accounts from past were closed. I know or assume the main thing is for them 1st to prove they own the debt actually showing that as I know and as I received in this case a document blacked out parts and not my

 

The bill of sale does not have my account number or name on it after that page on a separate page says field date with last 4 of social, my name address phones and last payment date and what was paid-

Affidavit of debt on new page with some guys name from originating bank and last 4 digits of the account credit card # and date that it was sold, and notarized seal

Then after that page is a affidavit of sale by original creditor titled, but on that page my name does not appear but the page is stamped notarized like the other one.Following is Exhibit F page Certificate of Conformity my name not on it)

 

Pre legal notificaion which I never got and their letter with date to me that the account was transferred to debt collections for MCM. another letter stating last payment date , account opened balance with just my name and account number on that.

 

Proof of service.

 

So what does this all really mean to my case once it get to the trial date.?

 

Also the first paragraph of the BOP stated that  the BOP is not appropriate in an action on account stated because account stated is deemed to merge the various items on which the earlier  accounts were based.

Says BOP is inapplicable to Plaintiff's case. 

 

I  do see the above two posts, but I am just trying to get some clear cut info on how to attack standing.

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Question regarding Bill of Particluars- BOP. When you send this out and they send you back statements of your account (years worth) does the judge look at this as favorable to the plaintiff.

 

He might - if you allow the statements to be entered into evidence without objection.  But you won't do that.  It sounds like a little pile of unsubstantiated hearsay to me, and you will do the court, yourself, the plaintiff and society-at-large a big favor by attacking and objecting to every single piece of paper and testimony they plan to use.  That comes a little later, just stay on track.

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Just got my answer from MIdland for my request of POD.
 
This is what they sent
 
Copies of all statements from bank-  2 years worth - the account was opened over 16 years go
  See uploaded attachments- I scratched out dates and account numbers and name- My name did appear
On the Bill of sale, the grey boxes are theirs  there is a second page signed by Midland President and EVP of Wells Fargo Operations
 on a page after that there is a typed page called Field Date with my last 4 of SS, old address, sale amount, etc and last payment date etc, 
You can see the rest
there is a certificate of conformity after the affidavit of sale signed ( i did not upload that)
There is a also a pre legal notification statement  with MCM letterhead that  they purchased the account   (never got that ever)
Collection letter dated a year or so ago
Proof of Service
 
In their preliminary statement it says on Request 1-3 exhibits etc says they object as basis it is vague, overly broad etc,
Does say in preliminary statement not completed investigation of facts, discovery
And General Objections they object to each one, unduly and unreasonably oppressive, harassing, annoying, burdensome etc etc.
 
I can scan this in later
 
But this is the basic what I received.

Please note I cut off the dates at bottom of doc 4

 

 

I also see that they said in the plaintiff onjects to Doc 1 ( see attachment

post-158009-0-03053600-1400275751_thumb.

post-158009-0-70164700-1400275771_thumb.

post-158009-0-78892200-1400276366_thumb.

post-158009-0-28713400-1400280607_thumb.

post-158009-0-27828000-1400281758_thumb.

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I don't see anything deserving of being allowed in at trial.

Many strategies detailed on the board, but you might want to consider another request: for the Agreement for Purchase and Sale of Charged-off Accounts (I think that's what it says). Not likely to produce it and if you win a MTC, they'll probably quit.

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This is in addition to what he's already received however, but yes, standard. It may not be a bad idea to ask for the forward flow or whatever their calling it (as String suggested). Keep pressure on them.

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In their response to Request No. 1 it states "Plaintiff further objects to this request because of  Regulation Z of the truth in lending act stating that  a creditor is not required to  keep applications on opened ended accounts for a period of 24 months. after that the application may be destroyed"

What's up with that?

 

I looked Regulation Z up here but don't see what they. Midland are referring to

http://en.wikipedia.org/wiki/Truth_in_Lending_Act

 

Then I went here and still did not find anything pertaining to what they are saying.

http://www.investopedia.com/terms/r/regulation_z.asp

 

But then I ended up here and this is more concise but still confused

http://www.consumerfinance.gov/regulations/loan-originator-compensation-requirements-under-the-truth-in-lending-act-regulation-z/

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@credit2011

 

§226.25

 

(a) General rule. A creditor shall retain evidence of compliance with this regulation (other than advertising requirements under §§226.16 and 226.24) for 2 years after the date disclosures are required to be made or action is required to be taken. The administrative agencies responsible for enforcing the regulation may require creditors under their jurisdictions to retain records for a longer period if necessary to carry out their enforcement responsibilities under section 108 of the act.

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@credit2011

 

§226.25

 

(a) General rule. A creditor shall retain evidence of compliance with this regulation (other than advertising requirements under §§226.16 and 226.24) for 2 years after the date disclosures are required to be made or action is required to be taken. The administrative agencies responsible for enforcing the regulation may require creditors under their jurisdictions to retain records for a longer period if necessary to carry out their enforcement responsibilities under section 108 of the act.

As I recall the explanation a judge gave to a DC attorney basically went along the lines of, "the regulation did not require the destruction of evidence after two years. Your client chose to do that and that is not Credator's fault."

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@credit2011

 

§226.25

 

(a) General rule. A creditor shall retain evidence of compliance with this regulation (other than advertising requirements under §§226.16 and 226.24) for 2 years after the date disclosures are required to be made or action is required to be taken. The administrative agencies responsible for enforcing the regulation may require creditors under their jurisdictions to retain records for a longer period if necessary to carry out their enforcement responsibilities under section 108 of the act.

So meaning that a judge can require them, or not require them to produce the application on an open ended account? But basically they are trying using this as a defense?

 

I found this here

http://www.bankersonline.com/regs/226/suppi226-25.html

 

Previous regulation: Section 226.6(i).

1981 changes: Section 226.25 substitutes a uniform 2-year record-retention rule for the previous requirement that certain creditors retain records through at least one compliance examination. It also states more explicitly that the record-retention requirements apply to evidence of required actions.

 

still confused

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So now is their anything else I need to do  Trial i  over 8 months out. I am actually now checking my documents if they have even responded on time  as well.

Do I have to file a motion for witnesses at this point?

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Keep learning. Study  the rules of evidence that pertain to you. You don't motion for a witness, but when they send you a CCP 98 declaration in lieu of testimony (about a month before trial) you object to it and subpoena the declarant (witness).

 

Between 45 and 30 days prior to trial you send them a CCP 96 statement of witness and evidence request (DISC 0-015) to see what they will use against you at trial.

 

I would file MIL's against their evidence and trial brief about a week before trial  (check your local rules on the timing of this).

 

Also, if they mentioned a "forward flows" agreement or something to that effect; you may want to send them RFP's set #2 asking for that. You won't get it, but it may help keep evidence out, and it will keep pressure on them a little more.

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I am just trying to get some clear cut info on how to attack standing.

 

Standing can be addressed at anytime (right before trial begins is a good time) If the plaintiff lacks standing to sue you then the court lacks jurisdiction to hear your case.

 

1) they have to prove an assignment has been made between the JDB and the OC. The bill of sale should have signatures from the OC as well as jdb.

 

2) Your  name / ac# should be identified as well establishing your alleged account was indeed part of the sale.

 

I don't think they have completed this yet, and may supplement your name and ac# later (in response to the CCP 96 request), so this is also stuff you attack In your MIL's showing why it is inadmissible. Lacks foundation / authentication, prepared for the sake of litigation, hearsay, untrustworthy, etc. etc.

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Keep learning. Study  the rules of evidence that pertain to you. You don't motion for a witness, but when they send you a CCP 98 declaration in lieu of testimony (about a month before trial) you object to it and subpoena the declarant (witness).

 

Between 45 and 30 days prior to trial you send them a CCP 96 statement of witness and evidence request (DISC 0-015) to see what they will use against you at trial.

 

I would file MIL's against their evidence and trial brief about a week before trial  (check your local rules on the timing of this).

 

Also, if they mentioned a "forward flows" agreement or something to that effect; you may want to send them RFP's set #2 asking for that. You won't get it, but it may help keep evidence out, and it will keep pressure on them a little more.

Thanks  I will certainly note this-

I found this also to be interesting to refer to it if I need it

http://www.nclc.org/images/pdf/unreported/cach-v-jones11april2012.pdf

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Thanks  I will certainly note this-

I found this also to be interesting to refer to it if I need it

http://www.nclc.org/images/pdf/unreported/cach-v-jones11april2012.pdf

Good find. I don't think we hear of CCP 90 enough.  CCP 89 and CCP 90 definitely go against the bottom feeders trying to keep live witness out of court.

 

Keep up the good work.

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Does this case law help me or anyone being sued by Midland.

Maybe someone can explain or point out some things that would be pertinent to me or anyone else that has a Midland lawsuit

 

http://www.edcombs.com/hernandez-v-midland-credit-mgmt-merits/

 

I have also enclosed the attachment should someone want to yellow highlight anything and make a comment that we can all use. Hernandez v. Midland Credit Mgmt – Merits.docx

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Thanks  I will certainly note this-

I found this also to be interesting to refer to it if I need it

http://www.nclc.org/images/pdf/unreported/cach-v-jones11april2012.pdf

In your statement "Also, if they mentioned a "forward flows" agreement or something to that effect; you may want to send them RFP's set #2 asking for that."

where would  I find this from what they sent to me?  In the BOP they just sent copies of 2 yrs of statements, affidavit of original sale with  NOT MY NAME ON IT-(notarized

 

AFFIDAVIT OF DEBT with my name and last 4 account numbers of the credit card (notarized)

 

BILL OF SALE  -nothing pertaining to me or account number on it with a signature of Midlands  president  and original creditor the bank VP signature (not notarized)

 

EXHIBIT F CERTIFICATE OF CONFORMITY  (my name of info not on this)

 

PRE LEGAL NOTIFICATION   WITH STATEMENT WITH MY INFO ON IT

 

COLLECTION LETTERS THEY SAID THEY SENT

RESPONSE LETTER STATING THEY ARE PROVIDING DOCUMENTS TO VALIDATE THE DEBT

 

 

VERIFICATION OF RESPONSE  AND A POS

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