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It will be in the bill of sale.  Should say something like "subject to the terms and conditions of the agreement dated ___ between Oliphant and Midland" (or Wells and Oliphant depending on which bill of sale they gave you).

 

Edit:  How can the bill  of sale be between Midland and a bank?  Isn't Midland the second assignee?

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It will be in the bill of sale.  Should say something like "subject to the terms and conditions of the agreement dated ___ between Oliphant and Midland" (or Wells and Oliphant depending on which bill of sale they gave you).

 

Edit:  How can the bill  of sale be between Midland and a bank?  Isn't Midland the second assignee?

 Thanks for your quick response- So much appreciated! ::drowning:: I will take a double look-  It  says Bill of Sale  Midland  as buyer and and the OC which is the bank , seller. There are no other names . I will upload this doc tomorrow as I am heading out for evening in a few but that is what it says and List of Accounts as  attached Schedule A- there is a field data sheet after that with my social but not sure if that is part of this all it says is field data with last payment, account dates of opened  etc etc

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 Thanks for your quick response- So much appreciated! ::drowning:: I will take a double look-  It  says Bill of Sale  Midland  as buyer and and the OC which is the bank , seller. There are no other names . I will upload this doc tomorrow as I am heading out for evening in a few but that is what it says and List of Accounts as  attached Schedule A- there is a field data sheet after that with my social but not sure if that is part of this all it says is field data with last payment, account dates of opened  etc etc

it does say this "subject to the terms and conditions of the agreement dated ___ in the agreement

So- should I be sending them a request for POD 2nd set for ??? Please see attachment doc - I whited out the pertinent exact dates for privacy

 

Please note the :field data sheet" at the bottom it says date printed by Midland pursuant to bill of sale/assignment of accounts transferred on or about date etc provided by (bank named the OC)  in connection with the sale of accounts from (bank to Midland)

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I just see that the affidavit of debt states that the account was transferred to Midland about 45 days after the last payment.It also says the bank charged off the debt  about 45 days after the last payment.No way !!!  That is strange as to why the OC would charge off an account so fast without trying to get the next payment.  The affidavit states that Midland bought the debt about 2  months after last payment. I dont think banks charge off that quickly so this information has to be wrong.  My name appears within this affidavit of debt with amount but not the account number. On the affidavit of sale my name and account # do not appear on that paper.

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@credit2011

 

The date of last payment doesn't always determine when a cc company charges off an account.  It depends on how long the account has been in default.  Once an account goes into default, if it's not brought current, the cc company will charge it off even if small payments are being made.

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Where did you get the information about Oliphant in your first post?  Was it in the complaint?

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Where did you get the information about Oliphant in your first post?  Was it in the complaint?

no it was on my credit report I believe

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@credit2011

 

The date of last payment doesn't always determine when a cc company charges off an account.  It depends on how long the account has been in default.  Once an account goes into default, if it's not brought current, the cc company will charge it off even if small payments are being made.

Yes perhaps that is true if the account is closed. 

 

On my credit report  the  Midland listing  shows a date of delinquency 3 years ago so how does that match up with date of last payment for 2 years ago they also claim in discovery?

The date of delinquency means when the account first became delinquent and was not brought current. The date they (Midland) states as last payment is about a year forward from the date of delinquency on credit report. I don’t see how this can be claimed by them cause if anything a date of last payment would of normally be on or before the delinquency date on credit report.

But the date they show for what reads "Dat maj. Del 1st Rptd" says about a year later.which they have listed   In the POD they sent to me The date they said is last payment is about 7 months past the "Dat maj. Del 1st Rptd" line on Experian.

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The bill of sale says "pursuant to the terms of an Agreement" and "(the "Agreement"), and continues to mention the Agreement a few more  times. You could send RFP SET #2 and ask that the "Agreement" mentioned in the BOS be produced.

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The bill of sale says "pursuant to the terms of an Agreement" and "(the "Agreement"), and continues to mention the Agreement a few more  times. You could send RFP SET #2 and ask that the "Agreement" mentioned in the BOS be produced.

Thanks for that I will do that- They are using and stated in their response to me for the POD I sent to them this. " by asking for all documents, it requests that all documents are protected by the  attorney- client priviledge and attorney and work product doctrine may be proprietary and trade secret of nature.

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Then think about one of 2 things...

 

 

1. demand a privilege log;

 

2. file a motion to compel- how can you be sure that your account is actually included unless privilege is disallowed?

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Then think about one of 2 things...

 

 

1. demand a privilege log;

 

2. file a motion to compel- how can you be sure that your account is actually included unless privilege is disallowed?

Do I demand the privilege log first and the bill of sale under 2nd request for POD and then file a motion to compel if they have not come up with sufficient evidence requested? 

You said think of one of 2 things? Which one should I choose?

If I filed a motion to compel and it got denied them what?

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They are 2 separate issues, and I would do both. If they claimed  a privilege on earlier discovery; then send them a meet and confer letter regarding that. If they don't want to respond but instead hide behind a privilege; then you want a to see that a privilege log is filed.

 

AND send RFP set # 2 asking for the "Agreement".

 

If the proper steps are taken, and a motion to compel is needed, you will probably not lose the motion. If you lose the motion; then you just lose the motion, no big deal. You would just keep fighting and add to your argument the fact that they don't have this proof you requested.

 

Ultimately, 45 days - 30 days before trial you will send a witness and evidence request list under CCP 96, and their response to that is what you will be defending against, As well as their motion for declaration in lieu of testimony.

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They are 2 separate issues, and I would do both. If they claimed  a privilege on earlier discovery; then send them a meet and confer letter regarding that. If they don't want to respond but instead hide behind a privilege; then you want a to see that a privilege log is filed.

 

AND send RFP set # 2 asking for the "Agreement".

 

If the proper steps are taken, and a motion to compel is needed, you will probably not lose the motion. If you lose the motion; then you just lose the motion, no big deal. You would just keep fighting and add to your argument the fact that they don't have this proof you requested.

 

Ultimately, 45 days - 30 days before trial you will send a witness and evidence request list under CCP 96, and their response to that is what you will be defending against, As well as their motion for declaration in lieu of testimony.

How would I draft the meet and confer since they did respond to 1st set of POD, just not with evidence of proof.

Is this letter  here sufficient and how to reword?

 

I write regarding Midland Funding, LLC failure to respond to Defendant's First Set of Request for Production of Documents. 

Defendant served these Request for Production of Documents on  (date) 2014.  Plaintiff's verified response was therefore due on [due date here]. As noted above, Plainitff has failed to  provide an adequate reponse or serve any response at all.

Pursuant to California Code of Civil Procedure section 2031.300, because Plaintiff has failed to serve a timely response, it has waived "any objections to the demand, including one based on privilege or on the protection for work product". 

Please serve a verified response to these document request, without objection, on or before [insert 10-15 days after the date of THIS letter] or defendant will have no alternative other than to file a motion to compel such a response.

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Haven't read your entire thread, so waiting for someone more knowledgeable to chime in, but here's my $0.02: I think Anon was referring to docs that they didn't produce under a claim of privilege; you'd send a letter (meet and confer) challenging the privilege claims and then, assuming they don't agree to produce, request a privilege log.

 

 

 

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How would I draft the meet and confer since they did respond to 1st set of POD, just not with evidence of proof.

Is this letter  here sufficient and how to reword?

 

I write regarding Midland Funding, LLC failure to respond to Defendant's First Set of Request for Production of Documents. 

Defendant served these Request for Production of Documents on  (date) 2014.  Plaintiff's verified response was therefore due on [due date here]. As noted above, Plainitff has failed to  provide an adequate reponse or serve any response at all.

Pursuant to California Code of Civil Procedure section 2031.300, because Plaintiff has failed to serve a timely response, it has waived "any objections to the demand, including one based on privilege or on the protection for work product". 

Please serve a verified response to these document request, without objection, on or before [insert 10-15 days after the date of THIS letter] or defendant will have no alternative other than to file a motion to compel such a response.

After looking over your thread;I don't think you sent them a request for production of documents, only a BOP (unless I missed something). If it were mine I would consider what they gave you in their BOP response sufficient and not send the M&C letter.

I would send a request for production of documents and ask for the "Agreement" as we discussed earlier. I would also ask for an accounting showing all statements from a zero balance to the amount they claim due. (someone will probably chime in and say they don't need all the statements or they don't have to show how they came up with the balance). I would ignore that and ask anyway, you want them to show how they arrived at the balance.

You could however send a M&C letter asking for the statements and saying the BOP response was insufficient for not providing them, but if you are going to send an RFP asking for the "Agreement" I would just pair them together and handle it that way. 

There is a RFP example in ASTMedics thread under "discovery" that you can use to get an idea how to draft it, and you can make it say what you need.

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After looking over your thread;I don't think you sent them a request for production of documents, only a BOP (unless I missed something). If it were mine I would consider what they gave you in their BOP response sufficient and not send the M&C letter.

I would send a request for production of documents and ask for the "Agreement" as we discussed earlier. I would also ask for an accounting showing all statements from a zero balance to the amount they claim due. (someone will probably chime in and say they don't need all the statements or they don't have to show how they came up with the balance). I would ignore that and ask anyway, you want them to show how they arrived at the balance.

You could however send a M&C letter asking for the statements and saying the BOP response was insufficient for not providing them, but if you are going to send an RFP asking for the "Agreement" I would just pair them together and handle it that way. 

There is a RFP example in ASTMedics thread under "discovery" that you can use to get an idea how to draft it, and you can make it say what you need.

First off- thanks for taking the time to respond- This info is invaluable to me and everyone else here.

 

Yes, I did send them a RPOD and  BOP. I am sending a 2nd req for POD for the agreement. I will add the accounting showing all statements from a zero balance to the amount they claim due. as you suggested.

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If you would: fill me in on exactly what happened with your RFP set #1 (what did you ask for / what did you receive/) and then we can work on your M&C letter for it.

 

RFP Set #2 will be  a separate issue and will not effect that, so you can send it ASAP.

 

The BOP will then be considered sufficient.

 

There may be an issue with RFP set 1 in that you cannot file a motion to compel on it after 45 days from the insufficient response (and you first have to send the m&c letter) so not sure if you will have time on your side there or not, but you can always send the M&C anyway, and another  RFP if it's something you really need.

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I sent them a response to their 1st set of RPOD and Request of Admissions about the very end of March.

THE BOP that they responded to was dated Mid April and I received it not too far after.

They responded to my request for POD a couple of weeks back rejecting every request(Please note they state they have not completed their investigation in discovery in preparation for trial) In their reponse they use Reg. Z  

In their response to me requesting all documents they replied it was  I was the one that these document lie within and they say they are protected by attorney client privelidge and work product doctrine is  and or may be proprietary  and trade secret in nature

 

So- In sending them the 2nd set of POD I am assuming I can state this

1. ALL DOCUMENTS  relating to or ANY constituting  request for the bill of where plaintiff states "pursuant to the terms of an Agreement" and "(the "Agreement"), Request that the "Agreement" mentioned in the Bill of Sale be produced..

2. ALL COPIES relating to or  ANY  constituting statements of account number xxxx showing payments and credits since the inception to present.

3. ALL DOCUMENTS relating to or constituting ANY  assignment of  plaintiff to account  referred to in the complaint

 

Please note for #3, they sent me the usual bogus stuff that was written in my previous posts in this thread- Should I still include it or leave it out?

 

And, one more note- I looked at my complaint just now  and it is not verified

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OK,  it looks likes you are going to need to send  a meet and confer letter regarding the first set of RFP's. What exactly did you ask for in the first set of discovery? (I know it's probably on here but it is easier to bring up to this part of the thread anyway). I need to know what you asked for in set one so that you can meet and confer, then motion to compel those documents, and then ask for just what's missing in set 2.

 Your second set of RFP's needs a little work, and we will probably shorten it a bit. but first lets see what you asked for in set 1.

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OK,  it looks likes you are going to need to send  a meet and confer letter regarding the first set of RFP's. What exactly did you ask for in the first set of discovery? (I know it's probably on here but it is easier to bring up to this part of the thread anyway). I need to know what you asked for in set one so that you can meet and confer, then motion to compel those documents, and then ask for just what's missing in set 2.

 Your second set of RFP's needs a little work, and we will probably shorten it a bit. but first lets see what you asked for in set 1.

This is what I sent

 

 

SET NO.: 1 (One)

Pursuant to §2031 of the California Code of Civil Procedure, please provide and serve, within 30 days of the date of service of this request, the written response and statement required pursuant to CCP §§2031 (g), (h) and (i) and please produce for inspection and copying within 30 days of the date of service of this request, at 9:30 a.m., at  the following DOCUMENTS and things listed below.

I. DEFINITIONS

“DOCUMENT” means and includes, but is not limited to, the following: ANY writings, drawings, graphs, charts, photographs, phonograph records, tape recordings, notes, diaries, calendars, checkbooks, books, papers, accounts, memoranda, correspondence, reports, spreadsheets, working papers, drafts, appointment books, videotape recordings,

and ANY computer-generated, computer-stored or electronically stored matter, such as e-mail, instant messages, computer databases and electronic data stored on hard disks, floppy disks, magnetic tape or other electronic storage medium, as well as ANY other written, typed, printed, graphic or recorded matter of ANY kind, however produced or reproduced; ALL “writings” within the meaning of California Evidence Code §250; and ALL “writings,” “recordings” and “photographs” within the meaning of Federal Rules of Evidence §1001. Any written, printed or electronic copies of DOCUMENTS bearing notations, marks or codes not found in the original shall be deemed to be different DOCUMENTS and shall also be produced.

“ANY” shall mean “any and all.” Similarly, “ALL” means “any and all.”

1. ALL DOCUMENTS relating to or constituting ANY agreement between defendant and WELLS FARGO Bank.

2. ALL DOCUMENTS relating to or constituting ANY assignment to plaintiff of the account referred to in the complaint.

3. ALL DOCUMENTS constituting statements of account number xxxx showing all payments and credits from inception until present.

 

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OK. Did you send them a meet and confer letter regarding this set of RFP's?, (if so, what did it say?). That is probably what needs to be done. Meet and confer over this discovery you requested and motion the court to compel if they won't produce.

 

Also; I would send them the RFP's set # 2 asking only for the "Agreement" referred to in the BOS. This is assuming you want to defend this actively and also keep pressure on them.

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OK. Did you send them a meet and confer letter regarding this set of RFP's?, (if so, what did it say?). That is probably what needs to be done. Meet and confer over this discovery you requested and motion the court to compel if they won't produce.

 

Also; I would send them the RFP's set # 2 asking only for the "Agreement" referred to in the BOS. This is assuming you want to defend this actively and also keep pressure on them.

No, I never did send a meet and confer. I will now send it with the RFP#2 tomorrow then. Do I have to send each separately or on one  Certified Receipt in same envelope? Any good example of a meet and confer letter?

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I would send them separately and a few days apart starting with the M&C letter. There is an example on here somewhere from Calawyer, but you can make it just a simple letter on normal paper. Tell them to produce the discovery you requested in 10 days or you will motion the court to compel the discovery (keep in keep in mind you must then follow thru with the motion or you will be viewed as making empty threats). You will have to know how to file motions and the local rules that pertain. 

 

You could get by without the CMRRR for the M&C letter if you wanted to, but I would not chance it on the discovery set #2.

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Is their an example anywhere here on  a Motion to Compel for California- I found the  Court Rules here, but not sure how to exactly prepare one if needed. Would like to be prepared so this is sent out in a timely manner as I know their seems to be a small window of opportunity when you need to file these things. Does the plaintiff also get served a copy after I file with court?

 

I found court rules here

http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1345

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