caligirl2012

Served by Midland

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what I have read around these forums regarding these types of service, is to just let it slide, and focus on your defense, since most judges say that since you got the complaint and have time to answer you have not been prejudiced. also, plaintiff would just need to re-serve the documents.

 

not my experience, just what I have read around here.

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It won't help to point this out.  They will just say you were ducking service or claim that you are lying.  And even if the judge believes you, it is just not possible to prove in an individual case that plaintiff is somehow responsible for the lies of the process server.

 

But in a class action...............

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Ok, I have a question that I was wondering if anyone can give me some light on, until I can get ahold of  the court.

 

My summons was filed with the superior court of my county.

 

I filed my general denial on 10-16-2014 with the same court that the summons was filed with, before the 30 days was up.

 

Today I received my paperwork back  stating that:

 

1. This was not a (my county) Superior  Court Case,

 

2. Not filed within this jurisdiction/court location

 

Does anyone have any reason why this would be?

 

I know I can't do anything about it tonight, but it is gonna bug me till I figure out what is up.

 

 

Edit,

 

Figured it out.

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Edit,

 

Figured it out.

 

 

I am scratching my head.  What was the answer?  Wrong case number on the General Denial?

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I received a response to my BOP.

 

They stated:

 

The Plaintiff objects to Defendant's Demand for a BOP on the grounds that a BOP is not appropriate in an action on an account stated.

Plaintiff's complaint alleges account stated as its cause of action, as such it is Plaintiff's position a BOP is inapplicable to plaintiffs cause of action.

 

They sent:

Two bills

A bill of sale with a bunch company's listed

Three copies of letters that they sent me. I actually only received two of them.

 

So they did not send anything that I asked for.  My next step is to send discovery, correct? 

 

This is where I need help because as much as I am reading, I can't seem to grasp what exactly I need to ask for.

 

Thanks for any and all help.

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Look at ASTMedic's threat. There is a sample of request for production of documents that you could use. He requested only 3 item categories: 1. All documents relating ir constituting an agreement between OC and you with signature. 2. All documents relating JDB having authority to collect on the accouny. 3. All itemized statements from balance zero.

You can also add 4. All documents related to the forward flow agreement that is mentioned in the bill if sale.

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forward flow is sometimes called the "credit card purchase agreement". in your bill of sale it should say something like: pursuant to the Credit Card Purchase Agreement dated ______... bla bla between OC and JDB. 

in my case it was called the credit card purchase agreement. in your bill of sale it may say forward flow, or i think there is another name for it. but it the bill of sale should refer it since allegedly the bill of sale is an exhibit of that document.

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the reason to consider requesting the forward flow is for the disclaimer of warranties therein, which state

 

"EXCEPT AS PROVIDED IN THIS SECTION, THE CHARGED-OFF ACCOUNTS ARE BEING SOLD "AS IS" AND "WITH ALL FAULTS", WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER AS TO EITHER CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, AND SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE CHARGED-OFF ACCOUNTS, OR THE STRATIFICATION OR PACKAGING OF THE CHARGED-OFF ACCOUNTS."

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I am working on sending out discovery and as I am reading thru ASTmedics post I have just a few questions.

 

RFA - does this mean Request for Admission

 

ROGS - this one I can't figure out

 

Thanks.

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I mailed of my first request for production of  documents today.  If I understand correctly they have 35 days to respond since it was done by mail.  So this would mean they would have to have it in the mail Dec.26, but would Thanksgiving and Christmas give them an additional two days?

 

Also, I was looking at the paperwork that they sent me when I requested the BOP, and one of the forms they sent was an affidavit of sale of account by original creditor.  It was signed and notarized. But in the affidavit it states that on or about a date in Sept. the bank sold a pool of charge off accounts by a purchase and sale agreement and a bill of sale to Midland.  Since it specifically states a pool of accounts were sold and does not mention anything about a supposed account of mine, nor list any account numbers, can I use that against them at some point in time?

 

Also, should there have been any affidavit from the lawyer that signed the bill of sale?

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the reason to consider requesting the forward flow is for the disclaimer of warranties therein, which state

 

"EXCEPT AS PROVIDED IN THIS SECTION, THE CHARGED-OFF ACCOUNTS ARE BEING SOLD "AS IS" AND "WITH ALL FAULTS", WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER AS TO EITHER CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY OR ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, AND SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING THE CHARGED-OFF ACCOUNTS, OR THE STRATIFICATION OR PACKAGING OF THE CHARGED-OFF ACCOUNTS."

 

 

Right.  How can the purchaser, who did not create the documents, testify that they are correct when the creator of the documents won't give such a promise?

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what I have read around these forums regarding these types of service, is to just let it slide, and focus on your defense, since most judges say that since you got the complaint and have time to answer you have not been prejudiced. also, plaintiff would just need to re-serve the documents.

 

not my experience, just what I have read around here.

Members have tried to quash and the court basically said you are here so it is served. I think where you would have a good case is if you didn't live where they served it and they were pressing for default.

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I received in the mail from Midland:

 

Plaintiffs demands for Production of Documents

Plaintiffs requests for admisson

Plaintiffs special interrogatories.

 

I sent out my Discovery and by my calculations they should have until Dec. 26 to put the reply to it in the mail.

Should I wait and see if they send me this before I answer and send them back what they sent me?

 

Thanks.

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I'd answer them now, unless your answer some how will be changed by their answers to your discovery, which I doubt.   Hang in there, I found out today that I beat Midland, makes all of what you are doing now so worth it!

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I would hold off and answer them closer to the due date. If they object to your discovery it may help you with your answers to theirs.

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Look at ASTMedic's threat. There is a sample of request for production of documents that you could use. He requested only 3 item categories: 1. All documents relating ir constituting an agreement between OC and you with signature. 2. All documents relating JDB having authority to collect on the accouny. 3. All itemized statements from balance zero.

You can also add 4. All documents related to the forward flow agreement that is mentioned in the bill if sale.

What do you do when the judge states that you do not need to have each and every statement for the plaintiff to prove its case. This is what the judge said to me when I was in my MTC hearing that got denied. He did however state you can request what you want via other means of discovery. Am I hearing a judge that is pro plaintiff?

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What do you do when the judge states that you do not need to have each and every statement for the plaintiff to prove its case. This is what the judge said to me when I was in my MTC hearing that got denied. He did however state you can request what you want via other means of discovery. Am I hearing a judge that is pro plaintiff?

Was the cause of action an Account Stated?

 

If you live in OC, you can bet that the judge is a pro-creditor.

 

do you have a couple of suits? or how did you have an MTC hearing so soon? oh, never mind. I was confusing you with this threat creator.

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What do you do when the judge states that you do not need to have each and every statement for the plaintiff to prove its case. This is what the judge said to me when I was in my MTC hearing that got denied. He did however state you can request what you want via other means of discovery. Am I hearing a judge that is pro plaintiff?

I am thinking that judges rarely grant motions to compel because the court by law has to tread very lightly on the discovery process because they are the trier of fact. It sounds to me you have a fair judge who very nicely stated there are more ways to get the discovery such as subpoena duces tecum(SDT) to the OC, SDT to the plaintiff, SDT to the parent company of the debt collector.

The judges if they grant a motion to compel it is for gross violations of discovery such as distruction of evidence, willful hiding of evidence, etc.

http://california-discovery-law.comThis will help to show the level necessary to get a motion to compel.

Seadragon's opinion: fair judge who is right down the middle iompartial.

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I received their response to my production of documents. I found it interesting that they object to each and every request to the extent that it is unduly and unreasonably oppressive, harassing, annoying, burdensome, overbroad or constitues an abuse of the discovery practice. If they use that general objection then I should be able to also or is this just normal for them.

 

They sent with it about a years worth of statements, bill of sale (states seller hereby transfers, sells, conveys, grants, and delivers to buyer, its successors and assigns, without recourse except as set forth in the agreement, to the extent of its ownership, the receivables as set forth in notification files delivered by seller to buyer.) with a bunch of different signatures.

 

Purchase price reconciliation/funding instructions with a bunch of stuff blacked out.

 

A page that has my account number, name, address, open and charge off date, last payment and amount, loss and sale amount and last purchase date.

 

Affidavit of sale of account by original creditor that states the original creditor sold a pool of charge off accounts by a purchase and sale agreement and bill of sale to midland funding.  If it was part of a pool of accounts, how can the person who signed and swore to this know for sure mine was one of them?

 

Blanket certificate of conformity for the notary regarding the above paragraph.

 

An affidavit of sale of the account that was a discover card, changed to master card with different account number per the o.c.

 

A new ownership and pre-legal review letter that I never received until now, that was dated 10/15/13

 

A letter dated 1/28/14 informing me the account has been transferred to the internal legal collections department.  This is the first written communication that I received from them and that I did send a debt validation to.

 

A letter stating that they have been notified that I have been served.

 

What they didn't include and I was wondering why are the responses to the debt validation letter that I sent them. Those letters state that they are working on validating it and no further collection will take place, and another letter stating that the validation was complete and they will continue will collection.  Is it normal for them to omit them in their response?

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I am working on answering their paper work that they sent me and need some help to some questions.

 

Special Interrogatories:
 

#4. Did you ever report to OC that there was an inaccuracy in any billing statement you received from the OC?

 

#5. Did you ever report in writing to OC that the account was opened as a result of fraudulent activity?

 

Request for Admission:

 

#1. Admit that you applied for the account.

 

#2.  Admit that you used the account.

 

#3. Admit that you received monthly billing statements from OC or its predecessor in interest that related to the  transactions made.

 

#4. Admit that you made payments on the account.

 

#5. Admit that you owed xxxx.xx on the account at the time the complaint in this action was filed.

 

#6. Admit that yo have not repaid the xxxx.xx due on the account.

 

#7.  Admit that the date of your last payment on the account was xxxxxx.

 

#8. Admit that you received the Notice of New Ownership and Pre-Legal Review from plaintiff, Midland Funding.

 

I never did receive this in the mail. The first time I saw it was when they sent it to me with BOP

 

#9.  Admit that you did not dispute the ownership of the account by Plaintiff Midland Funding.

 

I did send a debt validation letter upon receiving the second notice that they sent me, which was the first notice that I actually received from them, that was letting me know that my account had been turned over to the legal department.  They even replied to that debt validation, however they did not send it with the discovery.

 

#10.  Admit the Notice of New Ownership and Pre-Legal Review attached hereto as "Exhibit A" is a true and correct copy of the letter you received from plaintiff midland funding.

 

Again, I never personally received this in the mail.  It came with discovery.

 

 

#11.  Admit that you did not dispute the accuracy of the Notice of New Ownership and Pre-Legal Review letter attached hereto as "Exhibit A" that you received from plaintiff Midland Funding.

 

I did not dispute it, true because I never received it.

 

#12.  Admit that you owe plaintiff Midland Funding xxxx.xx

 

 

 

Documents to be produced:

 

#9. Any and all documents that refer or relate to correspondence received by you from Midland Credit Management.

 

Would this include the responses they sent to me regarding my debt validation?  Shouldn't they already have that information?

 

 

Thanks for the help.

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