Now Being Sued by Midland Funding in California - HELP ASAP

[AuthorCat]

This isn't my first rodeo. I have a thread here for my own case (which I won) and am now at the point of filing for Proposed Judgment of Dismissal to get my costs back. Thanks to Calawyer and RyanEx for your help with the drafts!

Now to the point why I'm posting.

Midlund Funding is suing Hubby for a debt that's smaller than what I had been sued for by about $200 and change. He has sent a BoP, a MTC when they responded with almost nothing, and filed a GenDen, gotten a Trial Setting Conference date, and he's in the middle of Discovery.

They've responded to his First Set RFP with more paperwork than they had to the BoP and MTC. This time they've included copies of letters he sent to get VALIDATION (not verification) of the alleged debt, and when they failed to respond, he wrote them another letter with the same request, and they, again, failed to respond. This happened at the beginning of this year, according to the dates.

Now the kicker: they've included a copy that they've notified him that they bought the account (7/1/2016 - never received), a copy that Hunt & Henriques that they're handling the Midland account (10/29/2015 - never received) and a copy of their "Intent to Sue" dated 12/22/2015 (received). We did NOT receive the first two letters (and it's questionable they even sent these) but Hubby did receive their letter (along with family Christmas cards) for their intent to sue.

Hubby sent a DV on 01/07/2016, which they didn't respond to.  When no response came, he got nervous and sent another DV on 03/21/2016, which they also ignored (my guess is, they were planning to sue all along).

My question: HAVING THESE COPIES, HOW DOES HE RESPOND TO THEIR DISCOVERY, SPECIFICALLY THE NO. 14 and NO. 15 of the ROGS?

No. 14: Have you ever corresponded with Midland Funding LLC in writing regarding THE CREDIT ACCOUNT? Should he here mention the DV letters he's sent since they have copies?

No: 15: State all facts upon which you base your denial of the complaint in this action. Should he just respond with "Based upon the foregoing objection, defendant responds as follows: DENIED."

I will appreciate any and all help. He must mail back the responses to plaintiff's ROGS, RFAs, and RFPs by Friday, November 4 which marks the 35 days after they sent their Discovery, but I don't want him to be late.

PLEASE HELP ASAP.

[AuthorCat]

Okay. They're being too cut by half.

Under ROG No. 3 they ask:

"State the approximate date you opened THE CREDIT ACCOUNT" with the qualifier: (for the purpose of these interrogatories, THE CREDIT ACCOUNT shall mean credit account issued to you by CREDIT ONE BANK, N.A. account number XXXX XXXX XXXX XXXX). They have zero proof that there was ever a contract between Credit One and him. They have failed to produce the contract after he asked them in the BoP, the MTC of the BoP, and his RFP.

When he wrote them for DV, he didn't admit to anything, he simply asked them to validate that they owned the debt. They never responded and they haven't produced any letters showing that they had. So if he were to answer this interrogatory with an affirmative (his written DV letters), wouldn't he be admitting that the Credit One account is his despite their failure to produce the contract as propounded?

[Clydesmom]

10 minutes ago, AuthorCat said:

When he wrote them for DV, he didn't admit to anything, he simply asked them to validate that they owned the debt.

THIS is why they ignored his letter(s).  Validation does NOT mean they have to prove they own the debt.  The standard for validation is so low you can trip over it.  They only have to provide the name of the original creditor, an address if it is requested, and the amount alleged to be owed.  PERIOD.  None of the crap on the list you see in DV letters all over the internet (and this site) including proof of ANYTHING (other than a judgment if they already have one) has to be provided.

If that is what he asked then he essentially admitted in his correspondence he DID have a debt with Credit One and his only dispute was their right to collect.  That could work against him at trial.

[AuthorCat]

2 hours ago, Clydesmom said:

THIS is why they ignored his letter(s).  Validation does NOT mean they have to prove they own the debt. 

Thanks so much for responding, Clydesmom.

But I'm confused here. I believe they do have to prove they own the debt if they receive a written request from alleged debtor.

According to the 2014 Fair Debt Buying Practices Act. CIVIL CODE SECTION 1788.50-1788.64 

Quote

1788.52. (a) A debt buyer shall not make any written statement to a debtor in an attempt to collect a consumer debt unless the debt buyer possesses the following information: (1) That the debt buyer is the sole owner of the debt at issue or has authority to assert the rights of all owners of the debt.

They never responded with anything. And if I understand the statute correctly, they have to respond within 15 days or cease collection on the debt until they do. He didn't know Midland was going after him until he received a letter from their attorneys, Hunt & Henriques, stating their "Intent to Sue" - and this happened just before Christmas 2015. He responded as quickly as he could, sending a DV letter on 01/07/2016, which they never responded to. He sent a reminder and attached a copy of the original DV on 03/21/2016.

CA Civil Code 1788.52 (c)

(c) A debt buyer shall provide the information or documents
identified in subdivisions (a) and (b) to the debtor without charge
within 15 calendar days of receipt of a debtor's written request for
information regarding the debt or proof of the debt. If the debt
buyer cannot provide the information or documents within 15 calendar
days, the debt buyer shall cease all collection of the debt until the
debt buyer provides the debtor the information or documents
described in subdivisions (a) and (b). Except as provided otherwise
in this title, the request by the debtor shall be consistent with the
validation requirements contained in Section 1692g of Title 15 of
the United States Code. A debt buyer shall provide all debtors with
whom it has contact an active postal address to which these requests
can be sent. A debt buyer may also provide an active email address to
which these requests can be sent and through which information and
documents can be delivered, if the parties agree.

So I repeat my question here for anyone who wishes to help me answer it although I'm leaning YES:

Quote

 

My question: HAVING THESE COPIES, HOW DOES HE RESPOND TO THEIR DISCOVERY, SPECIFICALLY THE NO. 14 and NO. 15 of the ROGS?

No. 14: Have you ever corresponded with Midland Funding LLC in writing regarding THE CREDIT ACCOUNT? Should he here mention the DV letters he's sent since they have copies?

 

[Anon Amos]

Those may be rogs that you would object to. In #14 "THE CREDIT ACCOUNT" (depending on how or if they defined it) may not be an account you  recognize.  Or, you could just answer that you sent DV request that were ignored.

You can object to # 15 on the grounds that it is premature. Discovery is ongoing.

[AuthorCat]

41 minutes ago, Anon Amos said:

Those may be rogs that you would object to. In #14 "THE CREDIT ACCOUNT" (depending on how or if they defined it) may not be an account you  recognize.  Or, you could just answer that you sent DV request that were ignored.

You can object to # 15 on the grounds that it is premature. Discovery is ongoing.

Hi Anon! Thanks so much for responding.

This is what I came up with for my ROG response to #14: (Have you ever corresponded with Midland Funding LLC in writing regarding THE CREDIT ACCOUNT? )

NO. 14:    OBJECTION. This is beyond the permissible bounds of discovery, as the information sought is already assumedly known to Plaintiff through their records.

Or would it be more effective to respond with that he has sent them a DV (which they have copies of) and he has never received a response?

Also, I've prepared an OBJECTION for #15. This is what I came up with:

NO. 15:    OBJECTION on the grounds that this is premature. Discovery is still ongoing.

Is this okay?

[Anon Amos]

# 15 is ok but # 14 needs work. You would be objecting to the word "account", if you were to respond with an objection. There are objections on here somewhere for discovery but I don't remember the thread. If it was mine, I would just answer it with the dv request you sent that were ignored.

[AuthorCat]

8 hours ago, Anon Amos said:

# 15 is ok but # 14 needs work. You would be objecting to the word "account", if you were to respond with an objection. There are objections on here somewhere for discovery but I don't remember the thread. If it was mine, I would just answer it with the dv request you sent that were ignored.

Thanks, Anon! I was unsure about their wording "THE CREDIT ACCOUNT".  If he objects, could he respond with:

" OBJECTION. Defendant OBJECTS to this request on the grounds that the phrase “account” is vague and ambiguous, as defined in Plaintiff's interrogatory NO. 3 ."?

If you believe that answering with the dv request is more beneficial, how should it be worded?

Something like this:

"Defendant (his name) corresponded with Plaintiff twice. Defendant mailed per U.S. Mail his request for debt validation to Plaintiff Midland Funding, LLC on ../../2016. His request went ignored. Defendant mailed a reminder of his debt validation request, attaching a copy of the initial request, on (two months later). This reminder went ignored as well."

Edited October 31, 2016 by AuthorCat
added "as defined in Plaintiff's interrogatory No. 3"

[AuthorCat]

I'd also like to add that his response to interrogatory No. 1 is:

Quote

NO. 1....OBJECTION. Defendant OBJECTS to this request on the grounds that the phrase “account” is vague and ambiguous, in that the Complaint does not attach any agreement relating to an alleged account such that Defendant can respond. Plaintiff's Complaint is utterly devoid of any factual information regarding the alleged debt. For that reason, Defendant has asked Plaintiff to respond to a Bill of Particulars (CCP § 454) setting forth the contract referred to in the Complaint, all charges that were allegedly made pursuant to that contract, all credits that were made to the account.....(etc). Although the Code requires the plaintiff to respond in 10 days, Plaintiff failed to provide a complete response. Without such information, Defendant is unable to provide the information requested in this interrogatory. Defendant reserves the right to supplement his answer to this interrogatory after Plaintiff complies with its obligations under the Code.

Based on the above, maybe he can answer with: "Objection. Same as 1"?

[Anon Amos]

9 hours ago, AuthorCat said:

Thanks, Anon! I was unsure about their wording "THE CREDIT ACCOUNT".  If he objects, could he respond with:

" OBJECTION. Defendant OBJECTS to this request on the grounds that the phrase “account” is vague and ambiguous, as defined in Plaintiff's interrogatory NO. 3 ."?

If you believe that answering with the dv request is more beneficial, how should it be worded?

Something like this:

"Defendant (his name) corresponded with Plaintiff twice. Defendant mailed per U.S. Mail his request for debt validation to Plaintiff Midland Funding, LLC on ../../2016. His request went ignored. Defendant mailed a reminder of his debt validation request, attaching a copy of the initial request, on (two months later). This reminder went ignored as well."

I think the objection and the answer here are both good. I don't know that there will be an advantage to choose one or the other. The less objecting you do the less likely they will file a MTC, however, and I don't think the answer will damage him.

[Anon Amos]

1 hour ago, AuthorCat said:

I'd also like to add that his response to interrogatory No. 1 is:

 

 

Based on the above, maybe he can answer with: "Objection. Same as 1"?

You can use the same objection but I would still spell it out for them instead of saying same as 1. Just a personal preference, it probably wouldn't make much difference. I wouldn't mention any BOP response in the objection and not offer more information then needed as in the other objection you had.

Make sure you send this registered mail with signature required. 

 

[AuthorCat]

1 hour ago, Anon Amos said:

You can use the same objection but I would still spell it out for them instead of saying same as 1. Just a personal preference, it probably wouldn't make much difference. I wouldn't mention any BOP response in the objection and not offer more information then needed as in the other objection you had.

Make sure you send this registered mail with signature required. 

 

Thanks so much, Anon! I will be sure to CMRRR, as always.

[AuthorCat]

Okay. Received their response to the CCP 96. No CCP 98 received, and it's too late for them already. The witnesses they intend to call at trial is Defendant and "Plaintiff's custodian of records". No name, just that and H&H's address (same address I've been serving docs to).

My question: do they have to give a name? And more importantly, what should be our response be in our trial brief?

Trial brief has to be filed 10 days before Trial (trial date: March 15th). The day to file the trial brief falls on a Sunday. And when I get the Trial Brief written, do I file it on the Friday before or on the Monday after? Should I use ASTMedic's trial brief since mine was based on them not responding to my CCP 96?

This is whole new territory for me now...

[calawyer]

They do have to identify the witness with more than just "the custodian".  You might want to send them a letter.

 

Dear___

 

Defendant have received Plaintiff's response to the request to identify witnesses and evidence pursuant to CCP section 96.  In response, Plaintiff has stated that it intends to call "Plaintiff's custodian of records".  This response is insufficient under the Code.

 

As CCP 96 specifically states, a responding party must give " the names and addresses of witnesses (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) you intend to call at trial".  Plaintiff's response does not identify any witness by name much less give an address.  Please be advised that Defendant intends to object to any witness that Plaintiff attempts to call at trial.

[calawyer]

Did they identify any documents?

[AuthorCat]

Hi Calawyer!

Their CCP 96 response only states under witnesses they want to call is defendant and "Plaintiff's Custodian of Records" and gives H&H's address.

///

Yes, they identified documents they intend to use:

(Useless) Field Data Sheet;

Bill of Sale (with electronic data file blacked out, no mention of name or the account at issue);

Bill of Sale and Assignment (missing same as the above);

Exhibit F - Affidavit of Sale (no mention of name or the account at issue);

Certificate of Conformity (out-of-state Attorney without the requisite jurat for the State of California");

Affidavit of Sale of Accounts by director of Sherman Originator III in South Carolina;

Generic Cardholder Agreement;

computer generated and incomplete billing statements.

///

I've already drafted a trial brief and declaration and filed these. I'll send it to you.

I'll draft the letter and fax it today since trial is next week.

Can I file an amended trial brief if mine isn't good enough?

[AuthorCat]

UPDATE: Another DISMISSAL...this one (our second one) was just before trial! We had a trial time of 10:00 a.m. and Midland's attorney filed a Dismissal on 9:38 a.m.

We didn't even arrive at the courtroom until 9:53 a.m.! Thanks to Calawyer and Anon Amos, we were ready for war, but we didn't get a chance to show what a frivilous lawsuit this was. We feel kind of sad about that, but we're jubilant that WE WON THE CASE.

My most deepest and most sincerest thanks and gratitude to Calawyer and Anon Amos. Without you, I would've been a nervous wreck, would have suffered too many sleepless nights, and would have had high blood pressure! Your calm and insightful advise got us through this second case with flying colors, and when we felt down and defeated, you were there to offer the kindest words.

THANK  YOU! THANK YOU! THANK YOU!! I love you both with all of my heart!

[RyanEX]

Congrats!

[sadinca]

congratulations!!! 

 

get your fees back!

 

[AuthorCat]

14 hours ago, sadinca said:

congratulations!!! 

 

get your fees back!

 

Thanks, SadinCa! I intend to. Still need to get my filing fee back, but I'll file an MoC for this case next week together with another [Proposed] Judgment of Dismissal for the first one.

I'm still floating among the clouds that we won a second case against a JDB!

[calawyer]

I am so proud of you.  I know how difficult and stressful this is.  But you stuck with it and were "all over them" at the end.  The response to the erroneous ex parte showed a bit of the hand you were going to play and I think they decided to cave way back then.  Really makes me mad that they waited until 22 minutes before trial to dismiss.  So disrespectful.

 

But you get to savor a win.  And they got whooped by a non-lawyer and had a net loss on this account!

[Anon Amos]

Plus, It will cost them even more when you get your cost back. Lose, lose for the bottom feeders.

[1stStep]

Congrats - file your MC-010 to get your costs back.

[AuthorCat]

2 hours ago, 1stStep said:

Congrats - file your MC-010 to get your costs back.

Filed and served last Monday!

Now the post-trial process begins...

Wait 30 days, and during those 30 days if they don't file a Motion to Tax Costs, send a letter with copy of stamped MoC for payment within 10 days. Wait another 20-30 days. If no response, then draft and 'clock & drop' a [Proposed] Judgment of Dismissal, wait for it to either be signed (in which case, file and serve a Notice of Entry of Judgment and attach a copy of judge-signed Judgment of Dismissal)-- OR -- if returned by Clerk, and depending on why it was returned, check paperwork, revise language if necessary, and 'clock and drop' again until it 'sticks'.

A process but it's worth it if only to, as Anon Amos mentioned above, make it a "lose-lose" for them.

[calawyer]

On ‎3‎/‎22‎/‎2017 at 10:07 AM, AuthorCat said:

Filed and served last Monday!

 

Wait 30 days, and during those 30 days if they don't file a Motion to Tax Costs, send a letter with copy of stamped MoC for payment within 10 days. 

They have only 15 days (plus 5 if you mailed) to file the motion to tax.  CRC 3.1700 (b)(1):  http://www.courts.ca.gov/cms/rules/index.cfm?title=three&linkid=rule3_1700