CaliBabe85

Help! First time being sued = Midland Funding. Struggling Student in California!

Recommended Posts

Midland can never win if you just say NO.

Deny everything and they cannot and will not prove anything, ever.

They can only offer hearsay and usually won't go that far.

File a counter claim.

Force them to discontinue and settle.

With no help from an attorney.

Remember- JUST SAY NO!

They are a disgusting predatory bank that buys debt for 10% and lack standing.

They should be out of business. 

Link to post
Share on other sites
15 minutes ago, MidlandMauler said:

Midland can never win if you just say NO.

Deny everything and they cannot and will not prove anything, ever.

They can only offer hearsay and usually won't go that far.

File a counter claim.

I just forced them to discontinue and settle for $1000 on my counter.

With no help from an attorney.

Remember- JUST SAY NO!

They are a disgusting predatory bank that buys debt for 10% and lack standing.

They should be out of business. 

Welcome to the boards!

While I appreciate your enthusiasm, just saying "no" does not always work.  I'm so glad things worked out well for you, but it doesn't mean that everyone would have the same results.

It's incorrect to state that Midland "cannot and will not prove anything, ever."  There are court rulings, including published case law, that show otherwise. 

Also note that California courts rules tend to differ a bit from the rules in most courts in other states.   Due to your rules, which tend to favor consumers, your results would be more likely occur in California but not necessarily throughout the rest of the country.

  • Like 1
Link to post
Share on other sites

They win their cases through default and bullying.

If one doesn't admit to even having the card, they would have a very hard time proving one did.

Not to mention solicitation of the card. Which is Fed law.

Midland usually ends up with the account because the original debtor knows that all the t's aren't crossed or i's dotted.

But I hear you. What works for one may not work for another.

Link to post
Share on other sites
28 minutes ago, MidlandMauler said:

If you do admit to having the card, you may call them on proving solicitation or application for the card.

Unsolicited cards are illegal and it is not in their best interest to be involved in a case like that.

I believe you're referring to 12 CFR  226.5(a).  In regard to a solicitation, that statute simply means that if a credit card company solicits your business, it must provide certain disclosures (as required by law.  It has nothing to do with actually using the credit card.

Also, some consumer request credit cards when not solicited.

Research "use and acceptance".  Credit card agreements contain a phrase that states something to the effect of using the card means you accept the terms of that particular card.  Courts that have ruled on this issue have ruled that use of the card means the consumer agrees to the terms of the cardholder agreement. 

In other words, you'd have a hard time claiming that a company didn't solicit you, but you still used the credit card.  All the plaintiff must do is show that  you used the card.  It would then be up to the defendant/consumer to have that evidence excluded via the rules of evidence.

This site is based upon statutes and court rulings.  We do not deal in theories and suppositions.   We will provide applicable statutes and/or court precedent to support claims.

Considering that you are in California, I would suggest that you concentrate on CCP 96 and 98 regarding subpeonas.  That is where most CA consumers succeed.

@sadinca  @RyanEX

 

 

 

  • Like 1
Link to post
Share on other sites
56 minutes ago, BV80 said:

u concentrate on CCP 96 and 98 regarding subpeonas.  That is where most CA consumers succeed.

True! 

 

56 minutes ago, BV80 said:

Research "use and acceptance".  Credit card agreements contain a phrase that states something to the effect of using the card means you accept the terms of that particular card.  Courts that have ruled on this issue have ruled that use of the card means the consumer agrees to the terms of the cardholder agreement. 

Plaintiff may not even need to produce a Cardholder Agreement if not suing on breach of contract. Account Stated for example. 

An account stated claim arises when there are "(1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; and (3) a promise by the debtor, express or implied, to pay the amount due." Zinn v. Fred R. Bright Co., 271 Cal. App. 2d 597, 600, 76 Cal. Rptr. 663 (1969)

you may say: but i never made any promise to pay, either expressed or implied. the law is on the creditor side: "When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered." Maggio Inc. v. Neal, 196 Cal. App. 3d 745, 753, 241 Cal. Rptr. 883 (1987).

Link to post
Share on other sites
12 hours ago, sadinca said:

True! 

 

Plaintiff may not even need to produce a Cardholder Agreement if not suing on breach of contract. Account Stated for example. 

An account stated claim arises when there are "(1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; and (3) a promise by the debtor, express or implied, to pay the amount due." Zinn v. Fred R. Bright Co., 271 Cal. App. 2d 597, 600, 76 Cal. Rptr. 663 (1969)

you may say: but i never made any promise to pay, either expressed or implied. the law is on the creditor side: "When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered." Maggio Inc. v. Neal, 196 Cal. App. 3d 745, 753, 241 Cal. Rptr. 883 (1987).

For the original bank/creditor.

When talking about a collection agency/bank, not so simple. Once the account is sold, they receive no help from the seller. (from what I've seen)

They can't even prove the debtor received the statements.

Once I receive my check, I will post the details of my case, if anyone wants to see it.

Link to post
Share on other sites
3 hours ago, MidlandMauler said:

They can't even prove the debtor received the statements.

they dont have to. statements show your address or an address where you used to live. 

as suggested before by @BV80 concentrate on ccp98 and a subpoena, because if plaintiff slaps you with a ccp 98 and you do nothing, a judge would have to take the evidence attached to ccp98. 

Link to post
Share on other sites
6 minutes ago, sadinca said:

...concentrate on ccp98 and a subpoena, because if plaintiff slaps you with a ccp 98 and you do nothing, a judge would have to take the evidence attached to ccp98. 

Is this advice for the OP, who last posted to this thread in 2014, or the guy from NY that doesn't appear to be asking any questions?

  • Like 1
Link to post
Share on other sites
45 minutes ago, Goody_Ouchless said:

Is this advice for the OP, who last posted to this thread in 2014, or the guy from NY that doesn't appear to be asking any questions?

Right, I'm not asking & I chose this old thread because it was the first that came up in a search.

I figured other people may find it too and would like to hear actual instead of speculation.

Ccp98 may work for the original creditor but like I said before, the collector may not be able to present direct testimony or say whether any statements were mailed or electronically sent making it possible for another party to be in control of your account.

Link to post
Share on other sites
46 minutes ago, MidlandMauler said:

Ccp98 may work for the original creditor but like I said before, the collector may not be able to present direct testimony or say whether any statements were mailed or electronically sent making it possible for another party to be in control of your account.

this is incorrect. debt collectors rely CCP98 . 

A Plaintiff satisfies its burden of proof showing that it sent defendant monthly statements. If Defendant wants to argue that a third party was in control of the account, defendant would have the burden of proof on such argument. 

 

Link to post
Share on other sites
1 hour ago, MidlandMauler said:

Ccp98 may work for the original creditor but like I said before, the collector may not be able to present direct testimony or say whether any statements were mailed or electronically sent making it possible for another party to be in control of your account.

The California posters on this site are very knowledgeable and have also faced JDBs in court.   The have helped many posters from that state to succeed against debt buyer lawsuits.   Most of those wins were based upon CCP96 AND CCP98.

As pointed out by @sadinca, CCP98 applies to debt collectors.  Read CACH LLC v. Rodgers

https://scholar.google.com/scholar_case?case=13033318686227947034&q="§98"+AND+"Rodgers"&hl=en&as_sdt=4,5

  • Like 1
Link to post
Share on other sites
On 11/29/2017 at 2:22 PM, BV80 said:

The California posters on this site are very knowledgeable and have also faced JDBs in court.   The have helped many posters from that state to succeed against debt buyer lawsuits.   Most of those wins were based upon CCP96 AND CCP98.

As pointed out by @sadinca, CCP98 applies to debt collectors.  Read CACH LLC v. Rodgers

https://scholar.google.com/scholar_case?case=13033318686227947034&q="§98"+AND+"Rodgers"&hl=en&as_sdt=4,5

Have you read this case?  "The trial court found in favor of Respondent, specifically commenting, "I also find that Ms. Rodgers was evasive and unbelievable in testifying to certain things, such as she can't remember where she lived one year ago."" 

And, The judgment entered on June 10, 2013, was reversed and the matter was remanded for a new trial.

Have you any personal experience or just posting cases & speculating? You may never hear about most cases that were settled, such as mine.

My check is in. Would anyone care to hear the details?

Link to post
Share on other sites
3 hours ago, MidlandMauler said:

Have you read this case?  "The trial court found in favor of Respondent, specifically commenting, "I also find that Ms. Rodgers was evasive and unbelievable in testifying to certain things, such as she can't remember where she lived one year ago."" 

And, The judgment entered on June 10, 2013, was reversed and the matter was remanded for a new trial.

Have you any personal experience or just posting cases & speculating? You may never hear about most cases that were settled, such as mine.

My check is in. Would anyone care to hear the details?

Yes, I read it.  Did you?

It doesn't matter that the trial court found that Rodgers was "evasive and unbelievable" because the Superior Court specifically stated that the trial court should not have admitted CACH's evidence because the JDB did not comply with CCP98 and, without that evidence, CACH could not have prevailed.

"We have reviewed the record of the trial to decide if admission of the evidence resulted in a miscarriage of justice which requires reversal. If the declaration and its contents had been refused as evidence, Respondent could not have prevailed in this matter. We have reviewed the testimony offered by Respondent in the form of Appellant's testimony, which was the only other evidence introduced by Respondent. Although Appellant's testimony lacked candor, was contentious, and was disbelieved by the trial court, it did not constitute grounds for a civil judgment to be entered for the cause of action stated in the complaint. As such, we must conclude that there is a reasonable likelihood that Appellant may have prevailed but for the admission of the declaration of Magic West and the documents subject matter of his declaration."

Here's a few more excerpts for you.

"Thus a party may only introduce a witness's declaration if the opposing party had the opportunity to cross examine the witness at deposition or could require the witness to be subject to cross-examination at trial." (Target v. Rocha, supra, 216 Cal.App.4th at p. Supp. 9.).

"We agree with the court in Target v. Rocha, supra, 216 Cal.App.4th Supp. 1 that merely providing an address within 150 miles of the location of the trial is insufficient to effectuate service of a subpoena. Service of subpoenas is governed by Code of Civil Procedure section 1987, subdivisions (a) and (b) (hereinafter sections 1987(a) and 1987(b)). The witness needs to be served personally in order to compel appearance at trial (§ 1987(a)) or needs to be an officer director, or managing agent of a party (§ 1987(b)) with written notice to the party or its attorney to procure attendance at trial. The record in this case indicates that Magic West was not available for service of process at the address specified by Respondent. This is evidenced by the fact that no one at the specified address was instructed to make him, "available for service" within the 20 days before trial upon request. If the address specified for service of Magic West was indeed the law offices of Mandarich LLC, someone at the office could have accepted the subpoena on his behalf and requested his appearance consistent with his declaration that he would accept it at that location and make himself available for trial. Instead attempts by Appellant to secure his attendance at trial were refused."

"The spirit of section 98 was most certainly not to deprive litigants of the right of cross-examination."

I don't live in CA, so I don't have experience in CA courts, but I have read the multitudes of CA posts on this site in which JDB lawsuits were dismissed after those posters sent subpoenas (CCP98).

You might want to read posts provided by @calawyer(a CA attorney).

 

Link to post
Share on other sites
52 minutes ago, MidlandMauler said:

OK. You guys know everything.

I'll take my $G & be on my way.

If Cali law is as messed up as you people say, I'll add that to my list of why never to go there along with quakes, mudslides, fires & cow fart regulation.

Where did we say that CA law is "messed up"?  CCP98 is a very good law for CA consumers.  There's nothing messed up about it.

We welcome new posters, but we don't welcome snarky comments.  The "regulars" on here, including myself, have been researching and posting for years.  We are also experienced in our state courts.  Some, like myself, have also filed FDCPA claims and won. 

You might want to also read up on arbitration which has resulted in the dismissal of many JDB lawsuits filed in courts throughout this country.

https://www.creditinfocenter.com/community/topic/329407-arbitration-in-the-modern-era/

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

 

Link to post
Share on other sites
23 minutes ago, BV80 said:

Where did we say that CA law is "messed up"?  CCP98 is a very good law for CA consumers

yeah. i dont recollect any one making that assertion. California defendants have made pretty good use of ccp98. 

what i dont understand is why you have a beef with California laws while you are not even from here? i guess the Cambridge University research is actually true New Yorkers are neurotic and unfriendly. California may have Earthquakes, fires and mudslides, but that is much prefer to the constant smell of sun-baked urine. 

out.

  • Like 1
Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.