Deluxe247

Being sued by midlands in CA

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1.    Who is the named plaintiff in the suit?

Midland Funding LLC

2.    What is the name of the law firm handling the suit?

Midland Funding LLC, Hyo Jin Julia Jung

3. How much are you being sued for?

$4,000

3.    Who is the original creditor?

Citi Bank

4.    How do you know you are being sued?

Mother was served at my old address in San Diego, I currently live in the Sacramento area/ YOLO county not North County San Diego where case was filed

5.    How were you served? mother was served at my old address

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

Unsure

8. What was your correspondence (if any) with the people suing you

before you think you were being sued? I was sent letters, did not respond ever

9. What state and county do you live in?  CA, YOLO county, case is filed in North County San Diego

10. When is the last time you paid on this account?

Dec 21st, 2015

11. When did you open the account?

2013

12. What is the SOL on the debt? 4 years

 13. What is the status of your case? Suit served? Motions filed?

Suit Served, 1/14/2018

 

 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  No.

 15. Did you request debt validation before the suit was filed? No.

 16. How long do you have to respond to the suit? 30 days

 17. What evidence did they send with the summons?

         1)    A copy of the Bill of sale between Midland Funding & Citibank

         2)     "Notice of new ownership and pre-legal review" letter from Midlands

         3)      Citibank billing statement for 12/10/15 to 1/11/16

         4)      Citibank billing statement for 6/10/16 to 7/11/16

         5)     Notice of legal placement from midlands

 

I have been reading up on the appropriate threads here on how to build my case but I was curious what I should be doing since the court where the case was filled is an 8 hour drive from where I live currently, My mother let me know she was served papers for me today in North County San Diego and I have lived in Davis, CA for the past 4 years. Any help is much appreciated.

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20 hours ago, Deluxe247 said:

Mother was served at my old address in San Diego, I currently live in the Sacramento area/ YOLO county not North County San Diego where case was filed

How long have you lived at the new address?

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58 minutes ago, Clydesmom said:

How long have you lived at the new address?

I lived in Davis for 4 years, about 4-5 months at my current address and the rest at a different house also in Davis. I have my drivers license listing my davis address if that helps.

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1 hour ago, Clydesmom said:
47 minutes ago, Deluxe247 said:

I lived in Davis for 4 years, about 4-5 months at my current address and the rest at a different house also in Davis. I have my drivers license listing my davis address if that helps.

Not as clear as we need.  How long has it been since you lived with your mother?

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Just now, Deluxe247 said:

Almost 5 years since ive lived wit my mom in San Diego

That is what I wanted to hear.  You hit the jackpot.  Midland just violated the FDCPA and California collection laws by filing in the wrong court and serving you at an address you have not lived at in years.  Go to Consumer Attorneys and find a good consumer lawyer.  They will sue Midland for the violations and make this suit go away in the process.

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9 minutes ago, Clydesmom said:

That is what I wanted to hear.  You hit the jackpot.  Midland just violated the FDCPA and California collection laws by filing in the wrong court and serving you at an address you have not lived at in years.  Go to Consumer Attorneys and find a good consumer lawyer.  They will sue Midland for the violations and make this suit go away in the process.

Will do, thanks for the help. Does it matter that I opened this credit card when I did live with my mom in San Diego? Or are these questions I should discuss with the lawyer.

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2 minutes ago, Deluxe247 said:

Does it matter that I opened this credit card when I did live with my mom in San Diego?

No.  Midland is required to do due diligence and determine your location before suing.  They did neither.  They simply assumed you were at the same address from years ago and filed.  They do this garbage on purpose.  The hope is that you never find out they sued you and they get an easy default judgment.   The attorney will probably take the case for free because Midland will be paying their fees.

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On 1/15/2018 at 11:35 AM, Clydesmom said:

No.  Midland is required to do due diligence and determine your location before suing.  They did neither.  They simply assumed you were at the same address from years ago and filed.  They do this garbage on purpose.  The hope is that you never find out they sued you and they get an easy default judgment.   The attorney will probably take the case for free because Midland will be paying their fees.

So I've been having trouble getting a lawyer. I've contacted about 4-5 and most say they can't help me but maybe I am phrasing it wrong when I speak to them. I try to explain over the phone that my mother was served for me in San Diego where I haven't lived in nearly 4-5 years and this may have been intentional to get a default judgment against me and it may have violated CA collections law.

If I'm still not able to get one to take my case I'd like to be prepared to fight this myself just in case. I have a general denial ready but I've been doing research on getting it dismissed due to incorrect venue and what forms or how to do this. Some say I can file a motion to dismiss due to incorrect venue, some say since its CA I have to do a demurrer. Any advice would be helpful. Thank you in advance. 

I am in the process of compiling bills, my drivers license, mail, jobs I've had, school records that all show I've lived in Northern California for almost 5 years now.

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On 1/15/2018 at 12:22 PM, Clydesmom said:

You hit the jackpot.

Probably not, as OP's experience in trying to get a lawyer shows. Bonafide error, and suing at address where account was opened are way different than intentionally leaving summons at a Burger King in Barstow.

 

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2 minutes ago, Goody_Ouchless said:

Probably not, as OP's experience in trying to get a lawyer shows. Bonafide error, and suing at address where account was opened are way different than intentionally leaving summons at a Burger King in Barstow.

 

I was skeptical at first but the more I think about it literally every record about me for the past 4-5 years points to me not living in San Diego. Address on drivers license, places of employment, school records, leases, bills. Then again I'm no lawyer, I just think they conveniently didn't try to find me.  

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I am in the minority, but I don't think anyone connecting addresses to names at Midland is making enough to care about messing with individual debtors. Use logic - if 97% percent of lawsuits end up in default judgement, and most of the other 3% end up winning on the merits, doesn't it make sense that the more dots they connect in terms of debtor->address, the quicker they'll get a judgement? Of course, some will have you believe that most of the 97% are the result of sending summons to an empty lot.

They either made a mistake, or found that the address where you opened the account appeared in their records as a likely destination to find you - and that's exactly how it worked.

In any event, if Citi doesn't contain an arbitration clause, there are members here that are skilled in using CA Rules of Civil Procedure to win in court sometimes.

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2 hours ago, Goody_Ouchless said:

I am in the minority, but I don't think anyone connecting addresses to names at Midland is making enough to care about messing with individual debtors. Use logic - if 97% percent of lawsuits end up in default judgement, and most of the other 3% end up winning on the merits, doesn't it make sense that the more dots they connect in terms of debtor->address, the quicker they'll get a judgement? Of course, some will have you believe that most of the 97% are the result of sending summons to an empty lot.

They either made a mistake, or found that the address where you opened the account appeared in their records as a likely destination to find you - and that's exactly how it worked.

In any event, if Citi doesn't contain an arbitration clause, there are members here that are skilled in using CA Rules of Civil Procedure to win in court sometimes.

I guess at this point I should prepare to fight this myself, I believe I can get the case dismissed on the ground of wrong court and I'm hoping they decide it's not worth the trouble to refile in my local court. I just need some guidance on how to get about that since I'm getting conflicting answers online, I plan to call the small claims court advisor on Monday.

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23 hours ago, Deluxe247 said:

So I've been having trouble getting a lawyer. I've contacted about 4-5 and most say they can't help me but maybe I am phrasing it wrong when I speak to them.

Did you use a NACA attorney or any old lawyer you called?  Some only specialize in bankruptcy.  Try stating you have been sued by a junk debt buyer and they filed in the wrong jurisdiction.  

22 hours ago, Goody_Ouchless said:

Bonafide error, and suing at address where account was opened are way different than intentionally leaving summons at a Burger King in Barstow.

I disagree.  It would be bonafide error if the OP had recently moved less than a year ago.  After five years Midland is REQUIRED to ensure the address they are suing at is the one where the OP can be legally served.  They cannot assume they are still at the same address when the account was opened in this day and age.

If they are not finding an attorney it may be the type of lawyer they called as well.  Some are not interested in defending a suit or pursuing a violation of FDCPA.  They only want easy BK cases.

 

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3 hours ago, Clydesmom said:

Did you use a NACA attorney or any old lawyer you called?  Some only specialize in bankruptcy.  Try stating you have been sued by a junk debt buyer and they filed in the wrong jurisdiction.  

I disagree.  It would be bonafide error if the OP had recently moved less than a year ago.  After five years Midland is REQUIRED to ensure the address they are suing at is the one where the OP can be legally served.  They cannot assume they are still at the same address when the account was opened in this day and age.

If they are not finding an attorney it may be the type of lawyer they called as well.  Some are not interested in defending a suit or pursuing a violation of FDCPA.  They only want easy BK cases.

 

I went to http://www.consumeradvocates.org/ and found a few close to my area and sent 3 lawyers the following:

"Hi,
I wanted to inquire about setting up a consultation for a legal matter
I have. My mother notified me about a week ago that she was served
papers for me in her home in San Diego that was for a credit card debt
bought by a junk debt buyer / collections agency Midlands LLC in San
Diego.

I was doing research on how to deal with this online and due it looks
like Midlands sues in hopes of getting default judgments from people
not showing up. I haven't lived in San Diego with my mother in almost
5 years and someone advised me they may be breaking the FDCPA and
California collection laws by filing in the wrong court and serving me
at an address you have not lived at in years.

My drivers license, leases for the past few years, bills, employment
history, school records, and even another debt collection attempt all
document that i've lived in Davis/ Northern California for years.

I was advised that a lawyer can help with this case and pursue further
legal action against Midlands."

 

At this point I am preparing a motion to quash the service of the summons and complaint. Of the 3 lawyers I sent this email to 1 said he does not do this kind of work anymore, 1 did not seem interested in taking the case but advised me I could motion to quash but he recommended I contact midlands and settle, and the third hasn't responded yet. I have only contacted lawyers local to me in Sacramento/ San Francisco area, maybe I should try some in San Diego where the case is and where midlands is located.

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On 1/19/2018 at 7:29 PM, Deluxe247 said:

but he recommended I contact midlands and settle

Typical lazy attorney.

@calawyer May be able to help.  This is filed in the wrong county, which means that this court lacks jurisdiction over you.  I'm not sure what quashing service will do, I think you may need to file a motion to dismiss due to lack of jurisdiction and show that you are not a resident of that county.

If this were me, I would file an arbitration case according to the Citi card agreement.  As soon as this is dismissed from the wrong court, I would serve Midland (by Certified mail) a copy of my arbitration filing.  This will ensure that if they file again in the right county that they definitely will have violated the FDCPA and the Rosenthal Act.  Midland will not arbitrate because it costs them way too much (at least $5k min.) and California law prevents you from paying anything for the private arbitration, so they have to pay it all.  Filing the arbitration case (which I would file as if I am "suing" them, but only in arbitration instead of court, for the violations of suing me in the wrong county and asking for $2k under the FCRA and Rosenthal Act), would essentially be a shield against them filing a new lawsuit.  They will essentially ignore the arbitration case and demand from payment causing AAA to eventually close the case and nothing will come of it - but they can't legally sue you again without violating the law.  You might even get to reach a settlement agreement with them where they agree to release you from all liability regarding the alleged debt (wiping out the debt for good) in exchange for you dropping the arbitration case against them.

In the meantime, you can keep calling attorneys who do FDCPA and Rosenthal Act work.  Just google them.   I would call and not email them.  Also, keep your explanation short.  They are busy and don't have time for a whole story.  The facts are: You were sued by Midland in a county you don't live in.  Period.  They will decide from that if it's worth their time or not.

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On 1/22/2018 at 4:27 AM, fisthardcheese said:

Typical lazy attorney.

@calawyer May be able to help.  This is filed in the wrong county, which means that this court lacks jurisdiction over you.  I'm not sure what quashing service will do, I think you may need to file a motion to dismiss due to lack of jurisdiction and show that you are not a resident of that county.

If this were me, I would file an arbitration case according to the Citi card agreement.  As soon as this is dismissed from the wrong court, I would serve Midland (by Certified mail) a copy of my arbitration filing.  This will ensure that if they file again in the right county that they definitely will have violated the FDCPA and the Rosenthal Act.  Midland will not arbitrate because it costs them way too much (at least $5k min.) and California law prevents you from paying anything for the private arbitration, so they have to pay it all.  Filing the arbitration case (which I would file as if I am "suing" them, but only in arbitration instead of court, for the violations of suing me in the wrong county and asking for $2k under the FCRA and Rosenthal Act), would essentially be a shield against them filing a new lawsuit.  They will essentially ignore the arbitration case and demand from payment causing AAA to eventually close the case and nothing will come of it - but they can't legally sue you again without violating the law.  You might even get to reach a settlement agreement with them where they agree to release you from all liability regarding the alleged debt (wiping out the debt for good) in exchange for you dropping the arbitration case against them.

In the meantime, you can keep calling attorneys who do FDCPA and Rosenthal Act work.  Just google them.   I would call and not email them.  Also, keep your explanation short.  They are busy and don't have time for a whole story.  The facts are: You were sued by Midland in a county you don't live in.  Period.  They will decide from that if it's worth their time or not.

I wasn't sure whether I was supposed to motion to quash or dismiss, one lawyer responded to my email that I should motion to quash so I went with that until I could figure out otherwise? So would a motion to dismiss be appropriate, I have it drafted and I'm trying to get it looked at by one of my law school friends to make sure I do it right. I have a phone consultation with a lawyer Monday but I will try and find ones who do FDCPA work. Thanks!

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I would call as many attorneys in CA that I could until one will either agree to help you with this for no upfront cost or can at least give you a better answer on if a motion to dismiss or quash service would be better when sued in the wrong county.  I don't know CA law, so I can't give you the best answer as to which one is better, but it just seems to me that MTD would be more logical - but I'm not sure.

@debtzapper @BV80 @Brotherskeeper @Harry Seaward any ideas?

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As I said earlier, everything I found indicated that there is a world of difference between serving a person and prior residence where the account was opened, and at a location with no history tied to defendant. This would seem to be born out by the complete lack of interest in a lawyer taking the case. 

Consulting your legal friends and more lawyers makes sense - you want to get the quash/dismiss language correct.

"Quash in general terms, means to suppress. In the legal sense, it normally means to void something. That is, to get a judge to rule that a subpoena or other action by a lower court is invalid. ... A motion to dismiss is generally asking a court to dismiss an entire case or even a portion of a case."

Sounds like Quash would void summons, while dismiss is "dismiss." Six of one, half dozen of other? Either way they will refile in correct jurisdiction.

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I'm going to spend the next couple days trying to google FDCPA and Rosenthal Act lawyers and editing my motion, hopefully I can post in the lawyer related section here to have someone take a look at it. I appreciate everyone's input greatly. I'm just worried I may miss the 30 days deadline, my mother received the summons January 7th  @Goody_Ouchless @fisthardcheese @Clydesmom

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@Deluxe247

https://saclaw.org/wp-content/uploads/lrg-responding-to-a-lawsuit.pdf

6. Motion to Change Venue or Transfer

A Motion to Change Venue or a Motion to Transfer asks the court to move the case to another court. This can be a court in another county or a different type of court. Be careful of the timing of this type of motion; you will need to allow yourself enough time to file an Answer. See California Civil Courtroom Handbook and Desktop Reference (KFC 995 .Z9 T46) §4:4 for hints on timing this type of motion.

Grounds on which venue can be changed include:

• The case was filed in the wrong court

• An impartial trial cannot be had in the original court

• Witness convenience and the ends of justice are promoted by the transfer

• No judge of the court is qualified to act

• The case involves the state or a city, county, or local agency Changing venue does not terminate the case; it merely moves it to a different court.

Forms: There are no fill-in-the-blanks Motion to Change Venue or Motion to Transfer forms. You must create your own motion on pleading paper. You can find pleading paper formatted for Sacramento County Superior Court on our website at www.saclaw.org/pleading-paper-sacramento. You can find sample language for these motions in the resources listed at the end of this Guide.

 

http://www.courts.ca.gov/1066.htm

While someone representing himself or herself may be able to successfully handle certain parts of a case without a lawyer, other parts, like discovery, motions, and jury trial preparation, generally require the expertise of a trained lawyer. Click to find a lawyer. Your court's self-help center may also be able to give you some limited information.

You can also get the help of a limited-scope lawyer, which means that the lawyer helps you as a coach or advisor, and you still represent yourself, or you can hire the lawyer to handle only certain parts of your case that are too complicated for you to do yourself. To find out more about limited-scope representation, and get help finding a limited-scope lawyer, read about Limited-Scope Representation.

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On 1/26/2018 at 11:04 AM, Brotherskeeper said:

@Deluxe247

https://saclaw.org/wp-content/uploads/lrg-responding-to-a-lawsuit.pdf

6. Motion to Change Venue or Transfer

A Motion to Change Venue or a Motion to Transfer asks the court to move the case to another court. This can be a court in another county or a different type of court. Be careful of the timing of this type of motion; you will need to allow yourself enough time to file an Answer. See California Civil Courtroom Handbook and Desktop Reference (KFC 995 .Z9 T46) §4:4 for hints on timing this type of motion.

Grounds on which venue can be changed include:

• The case was filed in the wrong court

• An impartial trial cannot be had in the original court

• Witness convenience and the ends of justice are promoted by the transfer

• No judge of the court is qualified to act

• The case involves the state or a city, county, or local agency Changing venue does not terminate the case; it merely moves it to a different court.

Forms: There are no fill-in-the-blanks Motion to Change Venue or Motion to Transfer forms. You must create your own motion on pleading paper. You can find pleading paper formatted for Sacramento County Superior Court on our website at www.saclaw.org/pleading-paper-sacramento. You can find sample language for these motions in the resources listed at the end of this Guide.

 

http://www.courts.ca.gov/1066.htm

While someone representing himself or herself may be able to successfully handle certain parts of a case without a lawyer, other parts, like discovery, motions, and jury trial preparation, generally require the expertise of a trained lawyer. Click to find a lawyer. Your court's self-help center may also be able to give you some limited information.

You can also get the help of a limited-scope lawyer, which means that the lawyer helps you as a coach or advisor, and you still represent yourself, or you can hire the lawyer to handle only certain parts of your case that are too complicated for you to do yourself. To find out more about limited-scope representation, and get help finding a limited-scope lawyer, read about Limited-Scope Representation.

This is for a Plaintiff to change venues when they file in the wrong court.  Usually this is done prior to being served.  However, in this case, Midland used their own in-house process server to serve OP in the wrong county (that's 2 wrong county issues).  If one of us filed a case in court against a company and asked the state Marshall to serve them, the Marshall would return the service to us stating that the address is not in that county and would not serve the defendant.  At that point, we would have to use the rule you cited to move venue and properly serve.

However, in this case, the JDB actually served defendant in the wrong county.  That is a big difference than just filing, IMO.  That is what I believe makes this a FDCPA violation.  They took an action (serving suit in a different county) not legally allowed to take.

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2 hours ago, fisthardcheese said:

However, in this case, the JDB actually served defendant in the wrong county.  That is a big difference than just filing, IMO.  That is what I believe makes this a FDCPA violation.  They took an action (serving suit in a different county) not legally allowed to take.

@fisthardcheese

Hopefully @Deluxe247 will get a consumer attorney who agrees with you to agree to take the case. If not, should OP consider contacting plaintiff to stipulate to a transfer? 

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