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I was contacted by someone in an email and text message saying a suit had been filed against me and they wanted to represent me. Sure enough I checked the court's website and I have a suit filed against me by CACH LLC being represented by Midland Funding LLC. The suit was filed on March 29, 2016. 

I have been reading everything I can here especially the great thread about the case that was won here in CA in the stickies. I am sure this is going to be the start of a longer thread as I go through this process.

I have no idea what this debt is for and I have not been served. The court record shows a Summons Issued on 3/30/16 as the last action in the case. Is this saying that I have been served or they started the process to serve me? Is it normal to have a case filed and then 8 days later still not have been served? It makes me a little anxious wondering where and when someone will show up to serve me and wondering what the paperwork will say when they do. 

Also on the 29th it says that they filed: Complaint and Declaration Re: Reduced Filing Fees filed by Cach LLC. The filing fee is $225. I am not looking forward to paying that to file an answer. Do you know what they filed to reduce their fee and how that works? I would not be eligible for a fee waiver.

I thank you in advance for all of your help. I know that as I go through this process I am going to need it. 

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20 minutes ago, CCRP626 said:

CACH being represented by Midland?

Yes, it shows CACH LLC as the Plantiff and under represented by it has an attorney's name with the company as Midland Funding LLC. 

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To me it looks like the court record is showing that the summons has been generated, but you have not yet been served. How long it takes for them to serve you depends on different things - like do they have current address for you, during what hours are you home, are there other adults at your residence.... Sometimes they take care of the service quickly, sometimes it takes weeks or longer if they don't have current info.

Some servers/JDBs are very shady and will claim they have served you when they have not. Keep an eye on your online case file as the court will likely update it once they claim to have served you. You can stay on top of it that way.

In the meantime you can prepare for both eventually getting served and the case. If they find you, you can calmly accept the summons and get to work on defending yourself. You'll find a lot of help here. If they don't find you, but they have your address (or work address), they might leave the summons with an adult if they find one there (which is legal and called Substitute Service); they will then have to mail you an additional copy to complete the service. If you know they have your address, you can give the other adults at your home a heads up if you like.

They received a fee reduction because it is a small claims $$$ amount, but the law requires them to file in civil - so they get to pay the small claims fee, which I believe is around $170 or so. When that happens you automatically get the same fee reduction, you don't have to do anything to get it. Depending on how you are served you'll have 30 or 40 days to respond, gives you time to put the $$ together if you need it. If you need more time, when you file your answer you can apply for the fee waiver that you already believe you will not get, but it will buy you an additional ten days or so to pay the fee.

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15 hours ago, RyanEX said:

To me it looks like the court record is showing that the summons has been generated, but you have not yet been served. How long it takes for them to serve you depends on different things - like do they have current address for you, during what hours are you home, are there other adults at your residence.... Sometimes they take care of the service quickly, sometimes it takes weeks or longer if they don't have current info.

Some servers/JDBs are very shady and will claim they have served you when they have not. Keep an eye on your online case file as the court will likely update it once they claim to have served you. You can stay on top of it that way.

In the meantime you can prepare for both eventually getting served and the case. If they find you, you can calmly accept the summons and get to work on defending yourself. You'll find a lot of help here. If they don't find you, but they have your address (or work address), they might leave the summons with an adult if they find one there (which is legal and called Substitute Service); they will then have to mail you an additional copy to complete the service. If you know they have your address, you can give the other adults at your home a heads up if you like.

They received a fee reduction because it is a small claims $$$ amount, but the law requires them to file in civil - so they get to pay the small claims fee, which I believe is around $170 or so. When that happens you automatically get the same fee reduction, you don't have to do anything to get it. Depending on how you are served you'll have 30 or 40 days to respond, gives you time to put the $$ together if you need it. If you need more time, when you file your answer you can apply for the fee waiver that you already believe you will not get, but it will buy you an additional ten days or so to pay the fee.

Thank you very much. This is really helpful. 

Is it strange that I am being sued by CACH LLC and the attorney representing CACH works for Midland Funding LLC? In reviewing other posts I can't find a situation where that seems to have happened before? 

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I just wanted to post an update. I still have not been served. I check the court website every day for any updates. According to the website it has been 20 days since the papers were filed. The first day I received a text and email from a company offering to help. Over the weekend I received a letter from an attorney's office offering to represent me. I am clearly not hard to find so I do not know why I haven't been served. Is this some type of psychological tactic to mess with my head? I don't want them to lie about serving me so I will continue to check the court's website daily.  

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1 hour ago, Chills22 said:

I am clearly not hard to find so I do not know why I haven't been served.

Because California is one of the busiest courts in the USA and it takes time.  It is not uncommon for it to take anywhere from 30-90 days or more to be served. 

1 hour ago, Chills22 said:

Over the weekend I received a letter from an attorney's office offering to represent me.

That is because some bottom feeding bankruptcy lawyers troll the dockets and send those letters out as soon as cases are filed hoping to get more clients.  It isn't unheard of for someone to find out they are being sued by receiving those letters before being served.

1 hour ago, Chills22 said:

Is this some type of psychological tactic to mess with my head?

Nope, just a symptom of an over burdened system.

1 hour ago, Chills22 said:

I don't want them to lie about serving me so I will continue to check the court's website daily.  

Good plan.

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4 hours ago, Chills22 said:

I just wanted to post an update. I still have not been served. I check the court website every day for any updates. According to the website it has been 20 days since the papers were filed. The first day I received a text and email from a company offering to help. Over the weekend I received a letter from an attorney's office offering to represent me. I am clearly not hard to find so I do not know why I haven't been served. Is this some type of psychological tactic to mess with my head? I don't want them to lie about serving me so I will continue to check the court's website daily.  

You don't have to wait to be served to see the complaint.

If you can't access it online from home, then go to the courthouse.

That will give you a head start on your defense.

Once the complaint is filed with the court the action has commenced.

Usually, however, we don't respond to complaint before actually being served - but not always.

Also, we usually don't request discovery before actually being served - but not always.

 

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When I checked the Register of Actions this morning, as I do every day, it was updated with this:

04/19/2016    Declaration of Non-Service filed by Cach LLC.

Does this mean they are saying they haven't been able to serve me or are they just updating the court that I have not been served yet? 

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They may be saying they couldn't reach you for service and mailed the complaint to you,  or left it with left it with someone else etc. You would need to see what the declaration says. I would go to the court and get the complaint and answer it. I wouldn't want anything to do with arbitration. Get a copy of the declaration as well.

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OK, so I got the documents from the court. For the Declaration of Non-Service the process server is either lying or made a mistake. The process serving company is not located in my city and it appears that they use independent contractors around the country to handle service.

The address they have listed on the form is exactly my correct address. The server claims that they attempted to serve me at my house around 3:00 PM on a Wednesday. At this time my wife and I are at work and my kids are at school. No one is home.

However, the server claims that: Per JANE DOE (not actual name but the name is not one I recognize) RESIDENT (obviously not a resident) white female, 35 - 45 years of age, 5-4" -5'6" tall, weighing 140-160 lbs, with brown hair; subject unknown. 

There is no one at my house that matches that description at all. My wife is not white. 

And according to the form they charged about a $60 fee for service. 

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Did you get the complaint against you as well?  That is what you need to answer.  The court's in Cali don't get too concerned by "sewer service". Technically you have not been damaged by this and you know a suit has been filed against you, so you have been served.

Do some research here, file a general denial (assuming the complaint isn't verified), and send them a demand for a bill of particulars (BOP, CCP 454).

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Now that I have documentation from the court I can also answer these questions:

1. Who is the named plaintiff in the suit?

CACH LLC

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

P. Scott Lowery, P.C. with a local attorney for Midland Funding also listed. 

3. How much are you being sued for?

$1,1XX.

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

According to court papers HSBC Bank.

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

I received notices from firms offering to represent me. 

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

I was not served. They have filed a declaration of non-service stating someone who doesn't live at my address was at my address and said I was unknown. 

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

I have not been served. I do not know what their next step will be regarding this. 

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

I do not recall receiving any correspondence from CACH LLC. 

9. What state and county do you live in?

California

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

They do not have a last payment date listed anywhere in their documents. 

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

4 years in California

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

It says that the status is: Pending

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

No, I checked Equifax and it is not listed on my credit report there. 

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?

I do not know since I have not been properly served yet. 

The "charges" are: Breach of Contract; Account Stated.

There is a credit card account number listed with a bunch of X's and 4 ending digits.

The only date listed is that supposedly they were assigned all rights, titles, and interests, on 4/15/2013.

My name is incorrect on the court documents. I have a long first name and the last letter of my first name is not included making it seem like a different name. My middle initial is incorrect. 

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

There is no documentation with the complaint. 

Under their Account Stated Cause of Action they do say this: "Within the past four years, an account was stated in writing by and between Defendants and
Plaintiff, in which it was agreed that Defendants were indebted on the account." I am confused by this since it seems to say that there was some agreement between myself and the Plaintiff; however, I have never communicated with them. 

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Chill,

So far so good, you are able to follow directions, getting the documents means you will not have a default judgement to unwind.  You have 30 days to file an answer to the complaint.  You will need to do this or they will file for a default judgement.  There is a simple form to complete "General Denial" along with Proof of Service that needs to be filed and sent to the other side.  Check your courts website for "Forms" and search for General Denial in the Civil section of forms.  You will also need POS-30 form, this will be your proof of service.

Next, you really need to remember, think back or consider if this account is yours.  I know a lot of things happen in life, but if I had some type of credit card in the last 4 years I would remember spending $1100.  Because you mention the first name and more importantly the middle initial not being absolutely correct, they could have the wrong person.  If this is really an ID Theft situation, there are steps to take to end the suit quite quickly.  But you have to be sure, because this route requires you completing a form and swearing under oath that it is.  If later it turns out to be your account then and even bigger mess, could become criminal.

Best of Luck

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A lot of JDBs use the Account Stated cause of action. Essentially what they are saying is that they sent you something in the mail stating that you owed them money ( "an account was stated in writing by and between Defendants and Plaintiff " ) and since you didn't respond to/deny that stated account, it implies that it is legit debt ( "it was agreed that Defendants were indebted on the account"). IMO it's a feeble cause of action, especially since you say you didn't receive anything, but it's what they use. Don't freak out over this, JDBs have been beaten many times in CA while using it. CA has favorable laws for consumers; the JDB will bear the burden of proof.

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Maybe I am being too logical but it seems strange that they can claim they can't find me to serve me but also claim they notified me of the debt and I didn't respond so that makes it valid. 

I do not think that this is a case of ID theft but not using my correct name shows how shotty their records are. 

They filed absolutely no proof of anything with their documents. Can I request summary judgement based on that?

When I file a general denial should I include affirmative defenses?

Can I request a BOP before I file my response?

Thank you. 

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They don't have to file anything with the complaint, they don't have to prove anything in the complaint.

You can file a motion for summary judgment but it's not recommended. You would have to have a firm understanding of all the rules and be able to draft motions very well. It's very hard to win a summary judgment that is being opposed.

The only affirmative defense that does  you any good is "time barred by the statute of limitations". If you can claim that defense then you should use it in the general denial.

You can send a demand for BOP before you answer the complaint and it's a good idea to do so. Don't be late answering the complaint however.

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Chill,

It is not logical the issues you mention, but you are not dealing with top notch attorneys looking to remedy a civil injustice.  Midland and Cach LLC are large Debt Collection corporate entities.  This means least amount of cost to gain the most profit possible.  Your name appeared on spreadsheet they purchased, and a admin person completed the necessary forms to submit to court, obviously with typo errors.  This is because there were 10K accounts to create the forms for.  This like a legal assembly line with very little checks and balances on their end.  If you don't get that call from the BK group you would be facing a judgement that you would have to unwind....so you are lucky.

As others have said if you participate and follow the directions given you have a very good chance of making this go away.  You will need to devote the time and effort, but the answers of what to do and when to do are here on this site.

As Anon has said find the forms get a General Denial filed and send the BOP right away.

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12 hours ago, Chills22 said:

Maybe I am being too logical but it seems strange that they can claim they can't find me to serve me but also claim they notified me of the debt and I didn't respond so that makes it valid. 

That's a good point, and you're right; it sure doesn't sound right. But here, with respect to an account stated claim, you're kinda comparing apples to oranges. "An account stated is an agreement between parties transacting business, and keeping accounts of their transactions, that a certain amount is the final balance due from one to the other." 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 972, p. 1062.  Of course, there were no "transactions" between you and a debt buyer. The "transactions" are those that allegedly took place between you and the original creditor. So what the debt buyer is really  claiming, in order to establish account stated, is that you struck an agreement with the "original creditor" on the balance owed, prior to the debt being sold.

You'll find that most debt buyers try to show evidence of "account stated" by attaching a monthly statement to a complaint, often one that was rendered before the account was charged off or even closed. Many times, the statements they provide will actually show an "amount due now" that is considerably less than the account "balance." In any case, the statement rarely, if ever, purports to be a "final balance" on the account.

There is no way this kind of statement should be allowed to suffice as a "final balance" agreed to between the parties. See, Northern California Collection Service, Inc. v. Salazar, F057350 (Cal. Ct. App. Mar. 19, 2010). "It is clear that a statement rendered cannot be said to be an account stated unless it is intended to be such and expressly or impliedly is assented to as such by the party to whom it is rendered. There is in the case before us no element of finality, as the parties were still transacting business. These statements were sent periodically and business was continued between them as before. There is no ground whatever for the contention that the account was rendered and intended to be an account stated, or that [the charged party], either expressly or impliedly, considered that it was such." (quoting American Fruit Growers, Inc. v. Jackson (1928) 203 Cal. 748, 751-752).

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One area where you attack this case is their proof of "assignment" that they actually own a debt you were obligated to pay.

Also, they need to lay a foundation for any cc statements they try to introduce into evidence, and need a live witness to do so.

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Thank you. I am preparing my response and BOP.

In my response should I use Statute of Limitations as an affirmative defense? The only date the debt collector has provided is in 2013 when they allege the debt was transferred to them. They state in their complaint that it is within the 4 year period but have not provided any documentation of that and mention no last payment dates. Most likely the last payment for this alleged debt would be at the end of 2012 putting it within 4 years but that has not been proven by them.

So should I put that as an affirmative defense to see if they can prove it? If I put it as a defense and they then do prove it is within the statute of limitations does that hurt me in any way? 

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Where there any documentation attached to the complaint? Does the complaint state that the debt was sold on or after January 1 2014. I'd so, they should have attached a statement showing a last transaction or payment. 

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There was no documentation included with the complaint. The only date mentioned in the complaint regarding the alleged account is, "...assigned all of its, rights, titles, and interests to Plaintiff on 4/XX/2013."

They also state, " California Civil Code, section 1788.52, does not apply as this account was purchased prior to January 1, 2014."

 

 

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I would state Sol as affirmative defense now, rather than later. If discovery proofs that the alleged debt is within Sol, defense will simply fall of. But if you don't state it now, and it happens that the alleged debt is out of Sol, you will not be able to use SOL during trial, unless you amend your answer, that will cost you another filling fee ($180 if I remember)

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I would say it's close enough to claim the SOL as an affirmative defense.

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