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Midland suing my dad (in CA)


sygyt
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I'm in kind of a complicated situation, because my dad is the only party named (along with ten Does) on this summons we just got, but he's easily upset by financial straits. So generally, my mom takes care of getting the bills paid, and he's kept in the dark. So this bit of business is a secret to him at the moment. But I'll answer the questions to the best of my ability. (Note: I'm an adult and probably better equipped to deal with this than my parents, but of course I can't just act on their behalf.)

 

1. Who is the named plaintiff in the suit?

Midland Funding, LLC

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

list of five lawyers, presumably in-house

 

3. How much are you being sued for?

$2,000+ (and cost of suit, and such other relief as the Court may deem just and proper)

 

4. Who is the original creditor? (if not the Plaintiff)

HSBC Bank Nevada, N.A.

5. How do you know you are being sued? (You were served, right?)

served (sort of)

 

6. How were you served? (Mail, In person, Notice on door)

notice on door

 

7. Was the service legal as required by your state? 

I think not. It was tucked into the screen door, not given personally to anybody. Moreover, the filing date was in June of last year, and the summons landed at our door this week (over 180 days afterward).

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

Nothing, to my knowledge

 

9. What state and county do you live in?
Los Angeles, CA

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Not sure; my mom has been trying to find paperwork
 

11. What is the SOL on the debt? 

4 years

 

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Pending

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

 

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

30 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Nothing. What we received consists of a summons, a complaint for account stated, a civil case cover sheet, civil case cover sheet addendum and statement of location, and a declaration of reduced filing fees.

 

Some other info:

Although the amount falls within the monetary jurisdiction of the small claims court, this is a limited civil case.

In the case summary, the most recent listing in histories is in July of last year and says:

"SERVICE RE: SUMMONS ; COMPLAINT RETURNED NOT FOUND/NO
SERVICE AS TO [defendant] FILED. COSTS OF $ 65.00 ."

There is also a future hearing listed for 2017: "OSC - 3.740 COLLECTIONS-DEFAULT JUDGMENT"

 

 

I'm trying to work with my mom to take care of this. I think we're going to have to eventually bite the bullet and tell my dad what's up, but I wanted to put this out here and figure out if there's a plan of action that can minimize my dad's involvement, so he doesn't have to worry and my mom won't worry about him.

 

We haven't done anything yet, but what I've read here seems to show that a General Denial and Proof of Service is the way to go as the first step. This has to be filed at the court in person, right? Does the named defendant have to do the filing, or can anyone file it as long as the defendant's signature is on it and the fee is paid? As his spouse, can my mom act on his behalf (and to what extent if so)?

 

Thanks for all the info already here, which has made me a bit less worried about this, and for any help you can give.

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Hi, I am currently being sued by Midland also.  A little further along tho.

 

You do need to fill out a general denial.  I used form PLD-050. The defendant does have to sign this.

Also you do need to send a POS (proof of service).  I used for POS-040. Somebody who is not a party to the lawsuit can sign this.

I downloaded both of these forms online.

 

You do file this with the court. I filed it myself, but I think anyone can file it and pay the fee.

 

Make sure you make copies.  You need one copy for midland, one for yourself, and file the original with the court.

 

Make sure that you send everything certified mail, return receipt requested.

 

This needs to be done within 30 days of receiving the summons. Otherwise  they can get a judgement against you.

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27 days left to respond.

So is the fact that the summons was served improperly, more than 180 days after the filing date, irrelevant? Can we ever use that fact against them?

My mom is willing to capitulate to Midland to get them off our backs and keep my dad from finding out. This seems like a bad idea to me; besides the potentially lower cost, what specifics can I cite to convince her that a lengthier process that requires my dad to sign some stuff (at the very least) is the better way to go?

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27 days left to respond.

So is the fact that the summons was served improperly, more than 180 days after the filing date, irrelevant? Can we ever use that fact against them?

as I have learned here, that most courts will ignore the fact that you were improperly served, since you received the summons, and have not been prejudiced in their view.

My mom is willing to capitulate to Midland to get them off our backs and keep my dad from finding out. I don't think that you can keep your dad out of this one, since even a settlement would have to be signed by him.

 

This seems like a bad idea to me; besides the potentially lower cost, what specifics can I cite to convince her that a lengthier process that requires my dad to sign some stuff (at the very least) is the better way to go?

to start with, is the moral stand point that they, the JDB, may not be in fact the current owner of the alleged debt and they are trying to collect with scare tactics on an account that they do not own, someone else may come along and sue your dad again on the same alleged debt (it has happened). second, you have never had any kind of dealings with these people, and you do not own them anything, you may, allegedly, owe to the alleged original creditor but not these bottom feeders. lastly, we do not know your financial situation, but instead of giving away money to someone that you do not owe any money to, never heard of before, and is in the business of potentially ruining the financial situation of families that may be already in or just getting out of a thought financial situation, you could instead spend that hard earned money on home improvement, needed car repairs, pay off debt that do in fact belong to you, a nice well earned trip somewhere.

 

your mom and you have a lot to think about and decide. you still have time to answer to the complaint. my suggestion is bring your dad into the discussion.

you are a good son/daughter by trying to spare your dad from stress, but unfortunately, I do not see another way but him finding out, but do answer the complaint, the worst way for him to find out is when the JDB obtains a default judgment and your dad gets his wage or bank account garnished.

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Oh, also, the one time they mention an address for my dad, it's in the statement of location, and it's an address where we haven't lived for over 20 years (no wonder it took them seven months to sort of serve him)! The court location was selected based on this address. Now, I believe there are only two courthouses in Los Angeles county to which limited civil cases are assigned, and we now live in a location that would be assigned to the other courthouse, which happens to be far more convenient. Can we ask for the location to be changed?

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Oh, also, the one time they mention an address for my dad, it's in the statement of location, and it's an address where we haven't lived for over 20 years (no wonder it took them seven months to sort of serve him)! The court location was selected based on this address. Now, I believe there are only two courthouses in Los Angeles county to which limited civil cases are assigned, and we now live in a location that would be assigned to the other courthouse, which happens to be far more convenient. Can we ask for the location to be changed?

 

yes, definitely, you can have that moved to the courthouse that actually belong to you.

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Do we still have to file our response at the inconvenient court, or can we change the court before then? Whatever the case, what do you have to do to switch locations?

 

In the affirmative defenses section of the general denial form, can citing statute of limitations be construed as an admission that the debt is ours? Or does the combination of the denial and the defense just mean, "We are unfamiliar with the account you're trying to collect on, and we haven't defaulted on any account in the last four years anyway"?

 

Thanks for the help.

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Maybe you can file your answer and the request to change venue at the same time and avoid making multiple trips.

I think there is a form, but im not sure. Im sure someone here will know the answer. Or a google search could give you the answer as well.

As to the question regarding the statue of limitations. Citing it would not construed as an admission but rather that the alleged debt whether it belongs to you or not is outside the time limit to sue. Regardless, proving SOL will be your burden.

You can get the credit report and find out if the debt is still within SOL or not and include it in your affirmative defenses based on that. If you include it now and the debt is still within sol you can always amend your answer, but the amend will cost you money, the same the other ways around if you decide not to include it but you find out is outside of SOL during discovery.

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You can also send a BOP. Bill Of Particulars to the plaintiff. Do a search in the forums. You will find what that is, the purpose and a template. They have 10 days +5 days for mailing a reply to the request. Their answer will contain all that they have regarding the alleged account including the date of last alleged payment, unless the cause if action is Account Stated, to which they will most likely object to the request. That may give you just enough time to find out if the alleged debt is still within SOL.

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You can also send a BOP. Bill Of Particulars to the plaintiff. Do a search in the forums. You will find what that is, the purpose and a template. They have 10 days +5 days for mailing a reply to the request. Their answer will contain all that they have regarding the alleged account including the date of last alleged payment, unless the cause if action is Account Stated, to which they will most likely object to the request. That may give you just enough time to find out if the alleged debt is still within SOL.

 

This needs to be both filed with the court and sent to the plaintiff, right?

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We haven't been able to verify the account named in the complaint, but my mom found record of a payment to a creditor in December 2010. If this is relevant to the case this means they're within the statute of limitations, right? That is to say, if the complaint was filed within the SoL, it doesn't matter if the summons was served outside it.

 

Reading up on here about affirmative defenses, I saw someone saying that a general denial suffices to suggest the plaintiff's lack of standing, since the complaint being refuted includes allegations of the plaintiff's standing. In addition, the person said that including lack of standing among affirmative defenses puts the burden of proof on the defendant. So, with the knowledge I have now, should I not include statute of limitations or lack of standing in the affirmative defenses?

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Reading through my first post, I realized I didn't answer all of 15.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

30 days.

Claims:

1. Midland can do business in CA.

2. This court (L.A. Superior Court) is proper because Plaintiff believes Defendant lives in this county.

3. Does 1-10 are believed to be responsible for alleged debt.

4. Defendants and co-defendants are in cahoots.

5. Defendant held account XXX with creditor HSBC.

6. Plaintiff is entitled to collect on the account as if it were the original creditor; references to Plaintiff may include its predecessor-in-interest.

7. Defendant used Account and in so doing promised to repay Plaintiff.

8. Plaintiff previously informed Defendant of intent to file this action.

9. Plaintiff tries to work with consumers blah blah blah.

10. Plaintiff strives to respect consumers and is generally awesome.

11. Only some consumers engage with Plaintiff and often benefit.

12. Some consumers are jerks and Plaintiff is forced to litigate, but is still willing to explore solutions with Defendant.

13. (Realleging foregoing)

14. Defendant became indebted to Plaintiff in the last 4 years on the Account.

15. Plaintiff has made demand on Defendant for repayment, and Defendant has failed and refused.

16. (Amount) is due as of the date of this complaint.

No interrogatory received.

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in our case we requested a BOP on an account stated. after they objected it was easier for us to object to their Request for documents saying: "Defendant has asked plaintiff to respond to bill of particulars..... Plaintiff objected... Without such information, defendant is unable to provide the information sought in this request. ..."

 

but you don't have to. you can skip that process and jump straight to discovery, request for production, that is. 

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