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Hello

thanks in advance for any help.. from what I have read  'account stated' sounds like it is going to be a little more difficult to deal with as it sort of does not require as much evidence and I am struggling to find much info on it.

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

 

2. What is the name of the law firm handling the suit? not sure just has a bunch of lawyers listed.. a google search seems to point to Encore Capital Group.. idk

3. How much are you being sued for? about $2800
4. Who is the original creditor? 
Synchrony
5. How do you know you are being sued? served

6. How were you served? In person
7. Was the service legal as required by your state? yes
8. What was your correspondence (if any) with the people suing you before you think you were being sued? They may have sent mail and called. Probably never responded because I may have thought it was junk mail/scam calls.

9. What state and county do you live in? California, Orange County
10. When is the last time you paid on this account? Oct 2014
11. When did you open the account ? Sept 2013

12. What is the SOL on the debt? 4 years
13. What is the status of your case?  suit served

14. Have you disputed the debt with the credit bureaus? I disputed collection agency twice through credit karma (on Apr 2017 and Dec 2017).

15. Did you request debt validation before the suit was filed? No 
16. How long do you have to respond to the suit? Case Management Conference set for Sept 2018. I have filed a general denial. The only cause of action is ‘accounts stated’. No interrogatory questionnaire received.
17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Exhibit A - Bill of Sale, Purchase Price Reconciliation/Funding Instructions, Affidavit of Sale of Account by Original Creditor, Blanket Certificate of Conformity for Notary, Certificate of a Federal Savings Association Title Change, then a  page with the electronic record with the basic account info (name, address, phone #, Charge off amount, current balance, Last payment date, etc)

Exhibit B - copy of welcome letter from MCM letting them know my account had a ‘new home’ and a statement with payment options dated Nov 2016

Exhibit C - Credit Card statement from OC showing last payment 

Exhibit D - Credit Card statement from OC showing final balance

Exhibit E - Notice of Legal Placement from MCM

 

I am thinking I need to amend my answer.. I had done some research prior to responding but for some reason was under the impression I was sued for breach of contract so I filed my answer accordingly thinking that the burden of proof would be on the plaintiff to prove it was my debt with some sort of signed contract but after filing I re-read the complaint and saw that the cause of action was 'accounts stated'.. I dont believe the affirmative defenses I listed apply.. and I am not sure which ones would apply to my situation.

 

  so the question # 1 - How would I amend my answer? is there a certain form?  What are possible affirmative defenses for 'account stated' ?

 

 

I h/ave previously disputed this debt through credit karma a few months after they had allegedly sent the statement (exhibit B.) and then again a few months later.

without a contract bearing my signature where is the proof I even owed the OC let alone the JDB..

 

   question # 2 - how do you fight this particular cause of action? how do I legally argue that my silence does not mean acceptance of the debt or imply that I agreed to anything really? how I do I shift the burden back onto them and make them prove that I owe them anything?

   .

    question # 3 - This was a joint account but I am the only one listed as defendant to this case.. does that matter in any way, shape, or form?

 

any info, good defenses, etc is much appreciated.

 

thank you

 

 

 

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On 7/17/2018 at 2:32 AM, beelee24 said:
On 7/17/2018 at 2:32 AM, beelee24 said:

so the question # 1 - How would I amend my answer? is there a certain form?  What are possible affirmative defenses for 'account stated' ?

you filed a general denial, so you most likely wont have to amend your answer unless you included an affirmative defense that may hunt you at a later time. what affirmative defenses did you include?

 

 

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On 7/17/2018 at 2:32 AM, beelee24 said:

question # 2 - how do you fight this particular cause of action? how do I legally argue that my silence does not mean acceptance of the debt or imply that I agreed to anything really? how I do I shift the burden back onto them and make them prove that I owe them anything?

an account stated caused of action is one of most popular claims that JDBs bring in collections lawsuits because no contract is needed, and less evidence is required. 

you cannot argue that your silence does not mean acceptance of the debt. California court have ruled in account stated cases "when a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered." Maggio Inc v. Neal 196 Cal. App. 3d 745, 753, 241 Cal. Rptr. 883 (1987). 

the good thing is that you dont have shift the burden back on to them. they burden of proof is already on them. they have to prove the account is yours, and that JDB owns the debt. 

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I'm sure they filed because the clock was clicking down on the SOL in three months.

What does the Notice of Legal Placement from MCM look like?  Is this a bill of sale from Synchrony to Midland?  Is there a document that claims to show your account was among a list of "charged off" accounts that were being transferred to MCM?  If so, what kind of information is included on it (name account number, etc.)?

This may be a long-shot.  You said the statement showed your last payment was made in October 2014.  Have you verified the date of the last payment with your own records?

 

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I have read a Bill of Particulars demand is not available in an action for 'account stated'.

 

I did not list many affirmative defenses, I was hoping they would have to produce some sort of contract with my signature to prove it was my debt (incorrectly thinking the cause of action was 'breach of contract'). 

I listed:  Failure to State a Claim, Laches, Contributory Negligence, Assumption of Risk.

the 30 days from my service was approaching so I sort of rushed my answer (I know, my mistake). Ive since done more research and feel that some of those do not apply...

and I feel possibly there are better fitting defenses.

 

Can cases from other states be referenced or would it be pointless.. for example I had came across  - https://casetext.com/case/c-h-contractors-inc-v-mckee

where is states ' it has been held that mere failure to object to an account sent by mail to one who has had no dealings with the sender does not give rise to such a presumption of acceptance of the account.'

 

If the letters were even received they may have been discarded as junk mail. How can I agree to statements when I didnt get them?

 

I also have previously disputed this account twice though Credit Karma (I believe they do it through TransUnion) a few months after MCM apparently sent me the first statement. (which I dont remember receiving).

Would that show I did not agree to the amount nor I did not make a promise to pay them?

..therefore there is not account stated.

 

 

 

 

 

 

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1 hour ago, LaneBlane said:

I'm sure they filed because the clock was clicking down on the SOL in three months.

What does the Notice of Legal Placement from MCM look like?  Is this a bill of sale from Synchrony to Midland?  Is there a document that claims to show your account was among a list of "charged off" accounts that were being transferred to MCM?  If so, what kind of information is included on it (name account number, etc.)?

This may be a long-shot.  You said the statement showed your last payment was made in October 2014.  Have you verified the date of the last payment with your own records?

 

The Notice of Legal Placement was just a letter from MCM to me saying that if I do not contact them or make a payment they might decide to sue me..

I cant verify much because most of my records from that time are no lost or not accessible...

I do not have the same bank accounts, phone number, etc.. 

I do stay at the same address though ,

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12 minutes ago, beelee24 said:

I have read a Bill of Particulars demand is not available in an action for 'account stated'.

Technically speaking the Bill of Particulars is inappropriate for an account stated cause of action because plaintiff is basing their alleged damages on that last statement that creates the account stated. however, if plaintiff is in possessions of other statements besides the two statements they have produced they should produce them. In many occasions plaintiff would respond to defendants demand for bill of particulars with only objections stating how BOP is inappropriate based on account stated cause of action, etc. however, those same objections will assist you in responding to plaintiffs discovery questions easier. you can read some members posts that have used this same strategy regardless of how plaintiff may feel about a BOP in an account stated caused of action. dont object for them. let them do it themselves. 

 

I did not list many affirmative defenses, I was hoping they would have to produce some sort of contract with my signature to prove it was my debt (incorrectly thinking the cause of action was 'breach of contract'). 

I listed:  Failure to State a Claim, Laches, Contributory Negligence, Assumption of Risk.

the 30 days from my service was approaching so I sort of rushed my answer (I know, my mistake). Ive since done more research and feel that some of those do not apply...

and I feel possibly there are better fitting defenses.

i dont see how any of the affirmative defenses you listed can come back to bite you.  contributory negligence may be an odd one for a collection case of this nature but again, i dont think it will hurt you. i would be concerned if you were claiming identity fraud or something of that nature. 

Can cases from other states be referenced or would it be pointless.. for example I had came across  - https://casetext.com/case/c-h-contractors-inc-v-mckee

where is states ' it has been held that mere failure to object to an account sent by mail to one who has had no dealings with the sender does not give rise to such a presumption of acceptance of the account.'

I cant click on the link, but this sounds like a Florida case law if i am not mistaken. unfortunately, California Supreme court will only observe California case precedence. Judge Cramin (Orange County Supreme Court in charge of collection cases) will skip right over and tell you how those do not apply in his court. 

If the letters were even received they may have been discarded as junk mail. How can I agree to statements when I didnt get them?

this is a logical statement. 

I also have previously disputed this account twice though Credit Karma (I believe they do it through TransUnion) a few months after MCM apparently sent me the first statement. (which I dont remember receiving).

Would that show I did not agree to the amount nor I did not make a promise to pay them?

..therefore there is not account stated.

most likely it wont. because the "account stated" was established when the original creditor Zynchrony  bank(?) allegedly sent out the last statement, and you failed to object. however, one of midlands discovery questions may ask if you ever disputed the debt before bringing suit, then you can say you did disputed the account. 

 

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3 hours ago, beelee24 said:

The Notice of Legal Placement was just a letter from MCM to me saying that if I do not contact them or make a payment they might decide to sue me..

Has MCM provided you with any documentation that are supposed to establish ownership of the account?

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Attached to there complaint were exhibits: [A] a group of documents 'proving' they purchased the debt(see my original post) with the last page saying all my basic info, credit limit, date of last payment, date of chargeoff, etc. a letter they apparently sent me saying that they had my account now & a bill. [C] statement from OC with the last activity which was only payments, no purchases. [D] the last statements from OC at or around time of charge off [E] a letter warning me they may sue me if I didnt pay them.

Since I have responded now begins discovery, correct? There is a date scheduled in a couple months so I was planning on sending their attorneys a Bill of Particulars (as suggested above) and a Request for Statement of Witnesses and Evidence and also a Request for Production of Documents..

 

I am still unsure as to how I try to fight this.. I do know if based off what they have provided so far that I agreed to a debt nor did I imply that I would pay them anything..

how are statements enough to prove that I even truly owed the OC.. 

 

I do not recall getting any letters from them, I remember just seeing it on my credit report and disputing it there..

I just feel a little lost on what to do or how my chances even are looking

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Welcome to the board beelee.

Your chances are pretty good - so long as you take the time to learn the ins & outs of this type of lawsuit and are diligent about deadlines when they come up. Plenty of CA posters have dealt with Account Stated as their cause of action and have been fine. I don't think I've ever noted much of a difference in Account Stated threads vs others.

Have you read this thread? Give it a look if you haven't, it will give you an in-depth idea of the process & happens to be an Account Stated case: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/. It's from 2012, but everything still applies.

The main things to remember are 1) CA laws are good for consumers/defendants in collection lawsuits. 2) You do not carry the burden of proof to show this is not your debt or that you don't owe Midland any money;  Midland carries the burden to prove that it's your debt, that they own it, and that it's accurate. 3) Midland is a Junk Debt Buyer (JDB), they are not the original creditor and will have a tougher time with #2 than an OC would.  :)

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i would send the BOP first. then hold on the discovery question until you are completely done with BOP. 

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