montanagirl

Husband is being sued by Midland Funding in Montana

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Received summons and complaint from Midland funding. Still not really sure if they are stating an account or breach of contract?? or both?

Their allegations and his answers:

 

1. The Plaintiff, was and is a Foreign Limited Liability Corporation lawfully authorized to transact business with the state of Montana.

ans: Defendant is w/o knowledge of Plaintiffs business, incorporation status, or legitimacy in paragraph 1 and therefore fully denies.

 

2. Upon information and belief, Defendant(s) currently reside in ******* County, Montana.

ans: Defendant  admits he currently resides in *******County, Montana.

 

3. upon information and belief, CHASE BANK USA, NA ("the bank") extended credit to Defendant pursuant to a credit card account that is currently designated by number *************("the credit card account").

ans: Defendant lacks sufficient information about the accuracy of this information to form a belief as to the truth or falsity of paragraph 3. Defendant has no reasonable basis other  than a general denial.

 

4. Upon information and belief, the bank regularly provided account statements to the Defendant reflecting activity on the credit card account along with the outstanding balances owed on the credit account at the time of the statements.

ans: Defendant lacks sufficient information about the accuracy of this information to form a belief as to the truth or falsity of paragraph 4. Defendant has no reasonable basis other  than a general denial.

 

5.Upon information and belief, the bank regularly provided account statements to the Defendant reflecting on the credit card account along with the outstanding balances owed on the credit account at the time of the statements.

ans: Defendant lacks sufficient information about the accuracy of paragraph 5. Plaintiff has not supplied any verification or proof of alleged account statements with this summons. Defendant has no reasonable basis for anything other than a general denial.

 

6.Upon information and belief, Defendants failed to dispute or reject account statements.

ans: Defendant lacks sufficient information about the accuracy of paragraph 6. Defendant has no reasonable for anything other than a general denial.

 

7. Payment on the credit card account is past due.

ans: Defendant lacks sufficient information about the accuracy of paragraph 7. Defendant has no reasonable for anything other than a general denial.

 

8.Prior to the commencement of this action all rights and interest in the credit card account debt were transferred and assigned to plaintiff.

ans: Defendant denies allegations contained in paragraph 8.  No valid transfer and full chain of assignment of right and interest from CHASE BANKUSA to the Plaintiff(s), or verification that it is indeed a legal transfer and assigned for the alleged credit card account was supplied with Complaint and Summons.

 

9. Despite demand by Plaintiff, Defendant has failed to pay the amount due and owing to Plaintiff on the credit card account.

ans: Defendant denies allegation contained in paragraph 9. No sufficient proof that any demands by Plaintiff(s) were sent to, executed, or received by the Defendant was supplied with the Summons and Complaint.

 

10. The Defendant owes Plaintiff $1800.00 that is due on the credit card account, together with the costs of this suit.

ans: Defendant denies allegation contained in paragraph 10. as there is not nor has there ever been any agreement, written, oral or implied with the Plaintiff(s) and defendant. No debt validation for the alleged credit card account, or alleged assignees pursuant to  the FDCPA Act 803.4 was supplied with the summons. Plaintiffs also did not supply the legal contract of the credit card account permitting alleged assignee to collect the costs of this suit. Plaintiffs protracted claims to ownership by assignment have no standing for the alleged credit card account and Defendant owes not one penny to Plaintiff.

 

sheesh! I'm tired...did I just screw it all up? The answer has been filed as of last week with Affirmative Defenses. I just now received a Rule 16(B) order from the court along with a Case Scheduling Order. We are suppose to agree upon a Settlement Master with opposing counsel. Is this like an Arbitration? Also want to send out Production of Documents since they provided absolutely nothing with the complaint can I do that now or do I have to wait until after Case Scheduling?

SOL is not an issue.

 

 

 

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It does not look like they stated their claim. What are they claim on? Breach of Contract? Account Stated? Unjust Enrichment?

You might have an affirmative defense for Failure to State Claim.

Other more experienced members might want to chime in. I don't know anything about MT's rules/laws.

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I had thought about that but was not sure if they had or not. I researched all our court records to see how others had fought them in the past. Out of 132 cases I found not one Defendant filed an answer. Most were default judgements and dismissed with predjudice (invalidity?) or settled with payment of some kind. Since we are the only ones that filed an answer in that court with Midland not sure where we stand...

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I would go to the members section and try to find a poster from montana with the most posts . It is hard to help other states bcause the rules differ slightly. I think the settlement thing is probably like a pre trial conference, where they will try to get you to settle for a lesser amt. You should have 30-40 days after your answer(read Montana rules of civil procedure) to get your discovery in.

 

I went to a local library and got the most recent guides for civil procedure(they change here about every 6 months)and you should send them RFA's and RFP of docs. I think your answer is ok. it's in so it will be!! Hope your husband appreciates all your hard work.

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I believe your answer was sufficient but you must look for the Montana rules of civil procedure. also local court rules. As your husband has been sued it would be best if he posts here also so we can get him up to speed.
 
If I find online resources for information I will post links here. I however am currently on a heavy workload schedule and may not be coming on the board every day. We can help though.
 
Get ready for mandatory disclosures and discovery. maybe look into a motion for more definite statement/ or bill of particulars.

http://leg.mt.gov/bills/MCA_toc/25.htm
http://leg.mt.gov/bills/mca/25/4/25-4-302.htm
http://leg.mt.gov/bills/mca/25/4/25-4-203.htm
http://leg.mt.gov/bills/MCA_toc/25_24_1.htm
http://leg.mt.gov/bills/MCA_toc/25_31.htm
http://leg.mt.gov/bills/MCA_toc/25_30.htm
 

 

@admin a pin for the thread to help Montana members please

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A bill of particulars based on MCA 25-4-302 would be a first good kick in the snardleys. I am looking up Montana examples but will say that this has to go out right away as discovery could waive the chance to ask for this.

http://books.google.com/books?id=5ws-AAAAIAAJ&q=bill+of+particulars#v=snippet&q=bill%20of%20particulars&f=false

 

This is one for California maybe something can be switched around

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Here is something I came up with. You would have to send this certified mail return receipt requested. make sure to fill in the information that is needed

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Strategic planning:

 

Bill of particulars mailed Monday priority mail if possible, CMRRR at a minimum

prepare a motion to preclude if they do not respond in 5 days

File the motion

await court ruling.

 

also we want to tighten up the answer if it hasn't been filed use the bill of particulars format and respond like some other similar answers

Mirrf answer.zip

Fla. answer.zip

Missouri answer 2.doc

Sneeze answer.zip

answer.pdf

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Thank you for the responses!! The answer was filed a week ago. I'm still wondering if they are stating account or breach of contract or both? 

This is the only thing I found in Montana regarding anything for an account.

 

"Universal Citation: MT Code § 25-4-302 (2013)

25-4-302. Pleading an account. It is not necessary for a party to set forth in a pleading the items of an account alleged in the pleading, but the party shall deliver to the adverse party, within 5 days or additional time that the court may allow or may be agreed to by the parties, after a demand in writing, a copy of the account or be precluded from giving evidence of the account. The court or judge may order a further account when the one delivered is too general or is defective in any particular."

 

I'm not sure if this would be of any good to us or not. We did already send a letter asking for a copy of this account with the copy of our answer to them and have received nothing back. I will look through everything you guys have posted and get busy!!!

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Oh....I just now went through everything and saw your bill of particulars!!! Good thinking!! I was wondering what to do with that little bit of law right there and you had already posted something on it....very efficient! I am looking through it now! Thank you so much!

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They are suing you for account stated.

This:

 

you opened and used the account

You used the account

they sent you monthly statements

you failed to object to those monthly statements

account is past due

you failed to pay it.

account was assigned to them.

 

Those are the elements for account stated. 

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Thank you shellieh98...all of this is so mind boggling when you have never been faced with it before...its all starting to kinda make sense now tho. Just reading all the other posts and blogs has been extremely helpful. I am so glad to have stumbled upon it in my search for help. :)

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Then we need a more definite statement motion type language but it is looking more like an open book account but it is vague. maybe amend your answer and use some of the language from the "Answer salad" I posted. You could title it Amended Answer. I believe they allow an amended answer and you could really crush them.

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Thank you for the responses!! The answer was filed a week ago. I'm still wondering if they are stating account or breach of contract or both? 

This is the only thing I found in Montana regarding anything for an account.

 

"Universal Citation: MT Code § 25-4-302 (2013)

25-4-302. Pleading an account. It is not necessary for a party to set forth in a pleading the items of an account alleged in the pleading, but the party shall deliver to the adverse party, within 5 days or additional time that the court may allow or may be agreed to by the parties, after a demand in writing, a copy of the account or be precluded from giving evidence of the account. The court or judge may order a further account when the one delivered is too general or is defective in any particular."

 

I'm not sure if this would be of any good to us or not. We did already send a letter asking for a copy of this account with the copy of our answer to them and have received nothing back. I will look through everything you guys have posted and get busy!!!

could we see the body of your letter to them redacted of course. I believe that without citation to the exclusion of evidence list on the document it may make exclusion difficult if it is more than 5 days lets prepare the motion.

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They are suing you for account stated.

This:

 

you opened and used the account

You used the account

they sent you monthly statements

you failed to object to those monthly statements

account is past due

you failed to pay it.

account was assigned to them.

 

Those are the elements for account stated.

I believe that account stated is not a cause of action in Montana, I will check but they have not plead any cause of action and without stating account stated they are screwed. Also 5 days for the Bill of Particulars we need to come up with a good one cause it seems Montana cares about their residents.

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Then we need a more definite statement motion type language but it is looking more like an open book account but it is vague. maybe amend your answer and use some of the language from the "Answer salad" I posted. You could title it Amended Answer. I believe they allow an amended answer and you could really crush them.

Ok...I filed the answer on March 21st and in Montana we have 10 days to amend it...so that means I have to file an amendment tomorrow. I will look through your answer salad and see what i can come up with.

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could we see the body of your letter to them redacted of course. I believe that without citation to the exclusion of evidence list on the document it may make exclusion difficult if it is more than 5 days lets prepare the motion.

It is just an letter addressed to jdb attorneys, referencing the lawsuit and cause #, asking to please send XXXXXX, defendant a copy of the account pertaining to this legal action.  Signed by the defendant with address.

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It is just an letter addressed to jdb attorneys, referencing the lawsuit and cause #, asking to please send XXXXXX, defendant a copy of the account pertaining to this legal action.  Signed by the defendant with address.

I think we are good on that letter then I haven't found any caselaw pertaining to Montana Bill of Particulars. I think however that you have to check the service by mailing statute to see if they get additional days for mailing. How many days total is important and if they fail you may want to file a motion to dismiss based on their non production.

redacted order of dismissal.doc

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I think we are good on that letter then I haven't found any caselaw pertaining to Montana Bill of Particulars. I think however that you have to check the service by mailing statute to see if they get additional days for mailing. How many days total is important and if they fail you may want to file a motion to dismiss based on their non production.

 

 

Is rule 6 © below what we are looking for?

 

 

 Rule 6. Time. A. COMPUTATION. When the computation of any period of time prescribed or allowed by these rules is by order of a court or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run may not be included. The last day of the period so computed must be included unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday. 

     B. EXTENSION. When by these rules, by a notice given under these rules, or by order of a court an act is required or allowed to be done at or within a specified time, the judge for cause shown may extend the period if a motion is made before the expiration of the period originally prescribed or extended by previous permission of the court or after expiration of the specified period if failure to act was the result of excusable neglect. 

     C. ADDITIONAL TIME AFTER SERVICE BY MAIL. Whenever a party has the right or is required to do an act or take a proceeding within a prescribed period after service of a notice or other paper and the notice or other paper is served by mail, 3 days must be added to the prescribed period.

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or this...

 

Rule 3. Interpretation of time requirements. All time limits set forth in these rules for filing documents or performing any act are actual time limits. In order to comply with a time-specific requirement, the document must be filed or the act performed on or before the last day of the time specified. In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included, but the last day of the period shall be included. No additional time may be added to any such time requirement for mailing or transmitting any document and all weekends and holidays are included in the times specified; provided, however, that if the last day of the time limit falls upon a weekend or holiday, then the time limit is extended to the next business day. All documents must be filed in the office of the clerk of the supreme court between 8:00 a.m. and 5:00 p.m. on business days.

 

 

they signed for, and received my answer and letter for copy of account on March 24th.

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Is rule 6 © below what we are looking for?

 

 

 Rule 6. Time. A. COMPUTATION. When the computation of any period of time prescribed or allowed by these rules is by order of a court or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run may not be included. The last day of the period so computed must be included unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day that is not a Saturday, Sunday, or legal holiday. 

     B. EXTENSION. When by these rules, by a notice given under these rules, or by order of a court an act is required or allowed to be done at or within a specified time, the judge for cause shown may extend the period if a motion is made before the expiration of the period originally prescribed or extended by previous permission of the court or after expiration of the specified period if failure to act was the result of excusable neglect. 

     C. ADDITIONAL TIME AFTER SERVICE BY MAIL. Whenever a party has the right or is required to do an act or take a proceeding within a prescribed period after service of a notice or other paper and the notice or other paper is served by mail, 3 days must be added to the prescribed period.

Ya hit that nail right on the head so 8 days total for the Bill of Particulars. So you have to move fast with the motion before they get documents from where they buy/make them from(joke)

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