mset83

Hoping to beat Midland from California

Recommended Posts

I was served yesterday by Midland Funding. I was obviously terrified but I was not shocked since I have been struggling financially ever since I was laid off in 2012. However hafter googleing how to beat a debt collector in court and finding this website I felt so much hope. I am truly greatful for any help I may received on this thread. THank you in advance.

 

1. Who is the named plaintiff in the suit? Midland Funding LLC
 

2. What is the name of the law freaotice on door) In person, my father accepted the documents


7. Was the service legal as required by your state? Yes although I believe they are still required to mail me a copy? If that is so do I go by the date personally served or the date mailed to me?


8. What was your correspondence (if any) with the people suing you before you think you were being sued? None


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


10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) According to the complaint August 2012


11. What is the SOL on the debt? To find out: 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).

01/13/2015 ORDER TO SHOW CAUSE HEARING SIGNED AND FILED BY DANIEL P

RAMIREZ, JUDGE TO SHOW WHY SANCTIONS SHOULD NOT BE

IMPOSED FOR FAILURE TO FILE REQUEST FOR ENTRY OF DEFAULT

JUDGMENT PURSUANT TO CRC 3.740(F). MATTER CONTINUED FOR

HEARING ON 02/14/18 AT 08:30A M., IN DEPT. SEY .

CERTIFICATE OF MAILING FILED, GIVEN TO RESPECTIVE PARTIES/

COUNSEL.

01/09/2015 COLLECTIONS CASE COMPLAINT FILED PURSUANT TO CRC 3.740. RN

NOR455965017.

01/09/2015 SUMMONS ISSUED.

01/09/2015 SUMMONS FILED.

01/09/2015 DECLARATION UNDER BUSINESS AND PROFESSIONS CODE 6322.1 FILED


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 according to Summons. However, I have a court date apparently issued for 02/14/2018 re: OSC - 3.740 COLLECTIONS-DEFAULT JUDGMENT


I thought the default judgment was requested after I failed to respond?


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

Exhibit A one page Bill of Sale with attachment of electronic records which include amount due, charge off date, my name, address and last payment amount and date.

Exhibit B is their first letter to me saying how amazing they are and how much they would love to help me

Exhibit C an August 2012 statement from Sears, i.e, Citibank

Exhibit D a May 2013 statement from Sears

Exhbit E a letter from Midland dated July 2014 stating they were sending my account to the legal department

It seems the only evidence they attached are the exhibits everything in my packet was as follows:

Summons

Complaint including exhibits

Civil Case Cover Sheet and CCCS Addendum

Declaration of Reduced Filing Fees

 
Link to post
Share on other sites

is the complaint verified or unverified? it the complaint its verified there should  be a statement with a lawyers signature stating that the information is correct, bla, bla.. if there is no such statement then the complaint is unverified; a simple general denial will suffice to answer the complaint. you have 30 days starting from the day you got served to answer the complaint.

 

http://www.courts.ca.gov/documents/pld050.pdf

 

 

consider sending a bill of particular. "a bill of particulars is a detailed, formal, written statement of charges or claims by a plaintiff or the prosecutor given upon the defendant's formal request to the court for more detailed information. A bill of particulars may be used in either criminal defense or in civil litigation."

 

if the cause of action on the complaint is an accounts stated, you will most likely receive an objection as a response, due to BOP according to them being "inappropriate", you can then turn around and use their objections to help you answer some of their discovery questions in the future.

 

in the following link, post 30, there is a template you can use to request the BOP, that's the same template I used from Calawyer.

http://www.creditinfocenter.com/community/topic/325252-midland-suing-my-dad-in-ca/page-2

Link to post
Share on other sites

If you were just served yesterday then you have not failed to respond. The order to show cause is a "tickler" from the court to encourage plaintiff to actively pursue or dismiss the case, rather than letting it sit. The hearing date may be cancelled at some point after you answer (keep an eye on the docket).

They don't expect you to answer and fight the case. There are new laws now that say they have to provide some evidence before they can get a default ruling (if you don't answer), and that is why they are including some in the complaint as exhibits.

Link to post
Share on other sites

Ok I believe it is unverified since I find no statement as described. My complaint does state for Account stated. I am beginning my paper work by starting the General Denial and Bill of Particulars and see where this goes :/

 

Thank you guys the OSC did give me a little scare thank you for explaining that for me. So much to learn! But I have been on it since last night reading all the posts on these forums. They are so helpful! Thank you all

Link to post
Share on other sites

Technically if it's account stated only you are not supposed to send the demand for BOP, but many people do anyway. They have also already given you some exhibits. You could send it anyway just to put some pressure on them. If that's you decide I would send it ASAP, before you file your answer.

Link to post
Share on other sites

Send BOP. I did on my account stated only cases. The more paperwork for them, the better. The worse that can happen is no response or an objection, to which you can follow up or start Discovery. Send BOP with a POS to plaintiff's attorney. File your answer with the court within the 30 days of being served. I used a general denial on all of my cases. 

Link to post
Share on other sites

Hmm just noticed I somehow deleted questions 3-6

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) No named law office just the name of 5 attorneys

 

3. How much are you being sued for? $4,086.09

 

4. Who is the original creditor? (if not the Plaintiff) Citibank, N.A.

 

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

 

6. How were you served? (Mail, In person, Notice on door) In person, my father accepted the documents

 

I think I got the first 2 steps down. However, I only have one small issue, my computer doesn't have microsoft word. Is there a pdf file I can use to fill out of these documents? I have google docs but cant seem to figure out how to make a pleading document. I was able to upload the BOP template to google docs but when I opened it it was a mess :/

post-167450-0-78779100-1422336853_thumb.

Link to post
Share on other sites

you put there any affirmative defenses that you may have. for example, if the alleged debt is beyond the SOL, you will state SOL as an affirmative defenses.

remember that the burden of proof on affirmative defenses fall on you.

 

you can list lack of privity, and plaintiff's standing to sue.

 

before finding out about these forums my wife and I stated over 17 affirmative defenses. but we didn't end at trial, so I am not sure how that would have affected us, other waving them in front of the judge.

Link to post
Share on other sites

I would put SOL at a minimum because it will put the plaintiff on notice that the better dismiss the complaint quickly if it is SOL because they have 20 days "safe harbor" period before they have a cause of action against them.

 

I had a laundry list in mine and at trial most fell by the wayside.

  • Like 1
Link to post
Share on other sites

Thanks seadragon I am installing that program now. I believe they are within the SOL though because they listed the last payment as 8/2012.

 

I am hoping that if this goes my way they can no longer sue since it will take approximately 1 year to deal with this case now then the SOL will have passed....I hope :)

Link to post
Share on other sites

Question: I tried to file my General Denial today and the clerk would not accept it, she mentioned that I needed to check number 2 and fill it out with my denial/acceptance of each point for the complaint. I thought the purpose of the General Denial was so that we didn't have to do that in this case I would have just done an answer to the complaint.

 

Any thoughts, do I have to check box 2 as the clerk mentioned?

Link to post
Share on other sites

If I do have to fill out section 2 with my denials does anyone have a sample General Denial I can go by? I am so frustrated right now since I have been out of town for 2 weeks due to a family emergency and now I am so close to the dead line for filing so I am really stressing out here :/

 

Thank you in advance

Link to post
Share on other sites

Question: I tried to file my General Denial today and the clerk would not accept it, she mentioned that I needed to check number 2 and fill it out with my denial/acceptance of each point for the complaint. I thought the purpose of the General Denial was so that we didn't have to do that in this case I would have just done an answer to the complaint.

 

Any thoughts, do I have to check box 2 as the clerk mentioned?

 

That doesn't make sense. The point of a general denial is that you generally deny the plaintiff's claim in it's entirety - you don't have to deny each point in the complaint because you are denying the whole thing. You are using PLD-050? If you have an affirmative defense, like SOL, then box #2 is meant for listing your affirmative defenses (not for denying paragraphs from the complaint) > check it and list SOL (if that is what you are doing). If you are not using any affirmative defenses, you'd leave #2 unchecked and just sign it.

 

Clerks get things wrong.

 

Have you determined what type of service the plaintiff claimed on your summons? Did they claim personal or substitute service?

Link to post
Share on other sites

That is exactly what I thought! I used to work for an attorney across the street from this court house so I know how stubborn clerks can be when they think they are right it is very frustrating. I left number 2 blank and they sub served me so I noticed in my case summary they filed a POS stating sub service. Ugh maybe Ill try again tomorrow in the hopes of a different clerk I hate arguing :(

Link to post
Share on other sites

What is the date they used on the POS for sub-service? (the date they say they placed the 2nd copy of the summons in the mail)

 

You get 40 days from that date to file your answer. (Service is deemed complete on the 10th day after mailing, then the 30-day countdown begins). If they personally gave it to someone other than you at your address on Jan 25th, then the earliest they could have mailed you a copy was also the 25th - you should have at least another 8 or 9 days or so til your answer is due - don't stress.

 

CCP 415.20

415.20. (a) In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. When service is effected by leaving a copy of the summons and complaint at a mailing address, it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof. Service of a summons in this manner is deemed complete on the 10th day after the mailing.     

  If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. Service of a summons in this manner is deemed complete on the 10th day after the mailing.

 

 

When you return to file your answer - maybe just bypass the clerk. *EDIT: Though you do have to deal with the clerk in order to pay the fees when you answer. Beyond that, you don't need the clerk for anything other than making sure you drop your answer in the right box. Clock and drop> take your Answer and Proof of Service and get them time-stamped (should be a self-service stamper there), ask them to make copies for you, then paper clip the originals of the answer and POS and drop them in the proper box. Keep your copies for yourself. Make sure you serve the plaintiff copies of these items (you can send the copies before getting the stamp  & no need to send these particular items CMRRR, just regular mail).

  • Like 1
Link to post
Share on other sites

Ok perfect it does not state what day they mailed the second copy of the summons but if they mailed it the same day I was served then I have until next Thursday. That sounds so much better. I knew I had more days to file but I was not sure how many so I did not want to file it late. Thank you for that information.

 

I am not sure if I can just drop off my documents since I am also filing a request for fee waiver. I am gonna go again tomorrow since I cant go today :/ hopefully I can just explain that number 1 is denying everything in the complaint.

Link to post
Share on other sites

Did you receive the mailed summons? A POS was likely included. Perhaps you can download the POS?

 

I just realized a person does need to deal with a clerk when filing an answer because you have to pay. Or in your case submit a fee waiver - not sure if that one can also be clocked & dropped. Anyone?

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.