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Forgot to Send My CCP 96 Demand to Midland AKA I'm an Idiot!


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I believe I've become the poster child for making sure you have all your deadlines written down do you won't miss any of them.

 

I have a trial date coming up with Midland in California in less than a month, and completely forgot to send them my CCP 96 demand.  I'm not sure if this means my case is a total loss.

 

Midland is suing me for roughly $7,000.  My husband has phoned them on a few occasions and has gotten them to agree to accept a settlement equal to about 60%.  It's still a lot of money, so I'm not sure if I should pay up and be done with this.

 

The funny thing is that I've never spoken with Midland by phone, nor have I given them permission to discuss the account with my husband.  I'm not sure if they've broken some laws that would be worth a countersuit.

 

Because I missed my opportunity to send a CCP 96 demand, I'm wondering how this will affect my chances in court.  My defense is that Midland is not the legal owner of the account.  The account has changed ownership twice, and they've only provided copies of documents that state a group of accounts were purchased, not my specific account.  (I'm sure the documents are typical of what others on this forum have received.)

 

Any advise or words of wisdom?  I really could use some input.

 

Thank you.

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Do you know what kind of witnesses Midland usually comes up with to provide testimony regarding the transfer of ownership?  Who do they usually work for?

 

I can't see how someone can have first-hand knowledge concerning the transfer of ownership unless they worked for the credit card company directly.  Because ownership switched hands a second time, they would need a second witness, as well.  Without first-hand knowledge, their testimony would be hearsay.

 

Even if they serve a CCP 98 affidavit, It would be difficult for them to adequately lay a foundation showing the person/witness is qualified to give such testimony.

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Because my defense centers around ownership of the account, I thought I'd provide you with some information on the documents they sent me in response to my Request for Production of Documents.

 

Original Sale of Account

 

Affidavit of Sale

Sale of a "pool of charged-off accounts" from Chase Bank to Equable Ascent Financial, LLC FKA Hilco Receivables, LLC

Signed by an officer of JPMorgan Chase Bank, authorized on behalf of Chase Bank to execute the affidavit.

 

Certification of the Certificate of Merger merging HIlco Receivables with and into Equable Ascent Financial.  Additional documents concerning the merger.

 

No mention of my particular account number

 

Sale of Account from Equable Ascent Financial to Midland Funding

 

Bill of Sale between Equable and Midland.  The Bill of Sale has been redacted.  The paragraph that includes descriptive information regarding the electrionic file sold to Midland has been blacked out, including the name of the file.

 

Affidavit of Sale of Accounts by Debt Seller

Signed by the Legal Agency Network Manager of Equable Ascent Financial confirming the sale of a "pool of charged-off accounts" to Midland that were originally purchased from Chase.

 

There is a printout from Midland that includes my account number, address, name of the original creditor, etc.  The bottom of this page reads, "Data printed by Midland Credit management, Inc. from electronic records provided by Equable Ascent Financial, LLC pursuant to the Bill o Sale/Assignment of Accounts transferred on our about ***** in connection with the sale of accounts from Equable Ascent Financial, LLC to Midland Funding, LLC."

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Because my defense centers around ownership of the account, I thought I'd provide you with some information on the documents they sent me in response to my Request for Production of Documents.

 

Original Sale of Account

 

Affidavit of Sale

Sale of a "pool of charged-off accounts" from Chase Bank to Equable Ascent Financial, LLC FKA Hilco Receivables, LLC

Signed by an officer of JPMorgan Chase Bank, authorized on behalf of Chase Bank to execute the affidavit.

 

Certification of the Certificate of Merger merging HIlco Receivables with and into Equable Ascent Financial.  Additional documents concerning the merger.

 

No mention of my particular account number

 

Sale of Account from Equable Ascent Financial to Midland Funding

 

Bill of Sale between Equable and Midland.  The Bill of Sale has been redacted.  The paragraph that includes descriptive information regarding the electrionic file sold to Midland has been blacked out, including the name of the file.

 

Affidavit of Sale of Accounts by Debt Seller

Signed by the Legal Agency Network Manager of Equable Ascent Financial confirming the sale of a "pool of charged-off accounts" to Midland that were originally purchased from Chase.

 

There is a printout from Midland that includes my account number, address, name of the original creditor, etc.  The bottom of this page reads, "Data printed by Midland Credit management, Inc. from electronic records provided by Equable Ascent Financial, LLC pursuant to the Bill o Sale/Assignment of Accounts transferred on our about ***** in connection with the sale of accounts from Equable Ascent Financial, LLC to Midland Funding, LLC."

Midland will not bring a live witness. If so, your case will the very first case ever that they brought one. Second, they will need a person from EAF and from Chase to validate the sale did in fact happen and that the signatures are from legitimate officers of Chase and EAF. EAF is also a bottom feeder of whom we beat also in addition to Midland last year. So all is not lost. You still have MIL and your Trial Brief so all is not lost.

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Midland filed a Declaration of Plaintiff in Lieu of Personal Testimony at Trial (CCP 98) exactly 30-days before trial.  I never received a copy of this.  I just learned about it this evening when someone recommended I check the court records online to see if this was filed without my knowledge.

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Midland filed a Declaration of Plaintiff in Lieu of Personal Testimony at Trial (CCP 98) exactly 30-days before trial.  I never received a copy of this.  I just learned about it this evening when someone recommended I check the court records online to see if this was filed without my knowledge.

You need to obtain a copy of it.

Filing it is one thing, but they were required to serve you a copy of it 30 days before trial. Did you download the declaration, did it have a proof of service?

If they are claiming proper service you'll need to focus on the subpoena for that declarant.

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The court has an online service that allows you to request copies of documents.  I'll have to download it tomorrow to see if there is a proof of service.

 

I'm not sure how I can properly serve a subpoena for the declarant when I no longer live in California.  Is this something that can be done by mail or FedEx?  Also, does the MIL and Trial Brief need to be filed prior to the court date?  I'm about 1,700 miles away which makes things a little difficult.

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did you move after the commencement of this suit? Otherwise I would say why you didn't motion to dismiss based on improper venue.

You can hire a process server or some counties still have the sherriff do it.  Do you have any cali friends that could help you?  It should give an addy 150 miles from the court where they can be served.  You can serve it 20 days out from trial, how are you filing other court stuff? You need to get a subpoena stamped by the court before you can serve it.  I don't know if they can do that by fax?

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The court has an online service that allows you to request copies of documents. I'll have to download it tomorrow to see if there is a proof of service.

I'm not sure how I can properly serve a subpoena for the declarant when I no longer live in California. Is this something that can be done by mail or FedEx? Also, does the MIL and Trial Brief need to be filed prior to the court date? I'm about 1,700 miles away which makes things a little difficult.

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I've decided to go ahead and settle this with Midland.  Although I hate to send them a rather large check, I believe it's the best thing for me to do.

 

If I were still in California, I'd go through as many hoops as I had to in order to fight this.  The fact that I'm 1,700 miles away makes it difficult.  I'm also a small business owner, so taking time from work to fly to California presents some challenges.  Putting this behind me now will be worth the settlement amount.

 

Thanks to everyone who has helped me out with my particular case.  I'm very grateful.

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