Starting a Battle with Midland funding in California

[Lady Bug]

I just wanted you to know how relieved I was to find this form! I'm going into battle with Midland funding over 8K credit card debt and was having so much trouble figuring out how to do this myself, until I stumbled onto this form.  I can't thank you all enough for maintaining this form and for all the knowledgeable and generous people here who help thought of us who are newbies. Thank you, thank you, thank you!

I have about 10 days to file my answer and I'm going to file that PLD-050, to start things off.  My first question is this. They did attach a bill of sale to the summons, but it said that Midland purchased the debt from Bank B.  More specifically, they  explained that they purchased a "batch" of written off debt on a  specific date a few years ago. But they said nothing about my account or my name being part of that purchase.  QUESTION: is that bill of sale a valid assignment of the debt? I was thinking one of my alternative defenses would be that the plaintiff is not a valid assignee, and thus lacks standing to sue.  Does that sound like a reasonable alternative defense?

The other interesting thing is that the original financer of this credit card was Bank A.  This is where the bulk of my charges were acquired and for whom I signed a contract with, not Bank B. Not once in any of the evidence submitted in the summons doesn't mention Bank A.  I called Bank B just to confirm and they stated that indeed my credit card was initially financed through Bank A (that's where I signed the agreement) and then after some years Bank A transferred that part of their business over to Bank B.

QUESTION: is that going to be a problem for Midland? And should I keep that information to myself and spring it on them as we get closer to trial? I tried to ask for a copy of my original billing statement and the contract I signed, but they said I would have to request that in writing. Is that something I should try to get?

Again, thank you all so very much for maintaining this form! I think I'm going to sleep halfway decent tonight for the first time since I've been served.

EDIT: FYI: just in case you are wondering why I had such a large debt: I ended up having serious medical condition and had/still do have a really bad medical insurance. It's a long story, but I've always had good credit until these health problems started running up astronomical medical bills.  It's under control now, but I still have a lot of medical bills each year, just to keep an eye on the problem. Eventually I'm probably going to have to file bankruptcy, but because I own a home with a lot of equity in it, only chapter 13 is an option. Anyway, sorry for the ramble, but I didn't want the form to think I was completely irresponsible and one of those.... kind. 

[sadinca]

2 hours ago, Lady Bug said:

QUESTION: is that bill of sale a valid assignment of the debt? I was thinking one of my alternative defenses would be that the plaintiff is not a valid assignee, and thus lacks standing to sue.  Does that sound like a reasonable alternative defense?

that sounds like a reasonable alternative defense that wont backfire. however, in California Plaintiff has the burden of proof that they own the account. so you dont have to raise this affirmative defense, but you could. (i did)

2 hours ago, Lady Bug said:

The other interesting thing is that the original financer of this credit card was Bank A.  This is where the bulk of my charges were acquired and for whom I signed a contract with, not Bank B. Not once in any of the evidence submitted in the summons doesn't mention Bank A.  I called Bank B just to confirm and they stated that indeed my credit card was initially financed through Bank A (that's where I signed the agreement) and then after some years Bank A transferred that part of their business over to Bank B.

QUESTION: is that going to be a problem for Midland? And should I keep that information to myself and spring it on them as we get closer to trial? I tried to ask for a copy of my original billing statement and the contract I signed, but they said I would have to request that in writing. Is that something I should try to get?

if i understand correctly, you are stating that you opened a credit card with Bank A (signed contract), then bank A transferred the card to Bank B. Midland is claiming they purchased the alleged debt from Bank B, but make no mention of bank A? 

if that is so, my personal incline would be to not raise the issue. because for this you would first have to acknowledge that you did in fact incurred a debt with bank A. @RyanEX ?

 

what are the cause of action? 

 

was there anything else attached to the summons? a statement? 

 

California Civil Procedure 1788.52 : (b) A debt buyer shall not make any written statement to a debtor in an attempt to collect a consumer debt unless the debt buyer has access to a copy of a contract or other document evidencing the debtor s agreement to the debt. If the claim is based on debt for which no signed contract or agreement exists, the debt buyer shall have access to a copy of a document provided to the debtor while the account was active, demonstrating that the debt was incurred by the debtor. For a revolving credit account, the most recent monthly statement recording a purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement.

 

 

[Lady Bug]

Thank you so much for the quick reply, and yes, you understood the bank situation correctly.

There are actually 31 complaints listed on the summons. Some of the key ones include these:

^ pursuant to California Civil Code 1788.58(a)(3), plaintiff is the sole owner of the debt. Attached hereto and incorporated herein by reference as exhibit a is a true and correct copy of the bill of sale from bank B to the plaintiff. The account was purchased by the plaintiff on September 2017. 
{COMMENT: This agreement was between bank B (not the original lender/creditor) and Midland, and contains no information about the actual account number, my name, or anything else.}.  There is also a "portfolio level affidavit of sale by original creditor." Some guy swears that he is the president of bank B and the custodian of certain books and records. Then it says "on 9/17, bank B, sellar, sold a pool of charged-off accounts to Midland funding.... I am not aware of any errors in the accounts. Then the form is notarized. But again, nothing mentioned about Bank A (my original bank) or my name, the credit card/account number, or anything else. Then there is a certificate of conformity.}

^ Pursuant to California Civil Code 1788.58(a)(4), the following is an explanation of the amount that the plaintiff is seeking to recover at the time of the filing of this complaint: charge-off balance 8K. Total post charge-off interest, 0, and total post charge-off fee, 0. Footnotes: this amount may include the charge-off principal amount and pre-charge-off occurred interest as set forth in the sellar data sheet attached hereto and incorporated herein by reference as exhibit a. Footnote: this amount is not reflective of the costs incurred in the filing and service of this action which are recoverable pursuant to California Code of Civil Procedure 1033.5.

^ Pursuant to CCC 1788.58(a)(6), plaintiff alleges that the name of the charge-off creditor at the time of the charge-off is bank B. Then it gives the address of the bank and an accurate account number.

^ Pursuant to CCC 1788.58(a)(9) plaintiff alleges that it has complied with the provisions of CCC 1788.52 and that it informed defendant of the assignment of the account attached hereto and incorporated herein by reference as exhibit B is a true and correct copy of the first written communication sent to the consumer by plaintiff. COMMENT: this initial notification had all sorts of problems with it like completely forgetting the mandatory notification.

^ Pursuant to CCC 1788.58(b) attached hereto and incorporated herein by reference as exhibit C is a true and correct copy of a monthly statement recording a purchase transaction payment or balance transfer while the account was active as required by CCC 1788.52(b).

^ By this complaint, plaintiff seeks to recover 8K from defendant.

^ As alleged above, before filing this suit, all right, title and interest to the account were sold and assigned to plaintiff. Plaintiff owns the account and is entitled to collect on the account as if it were the original creditor {the original creditor was Bank A}. To the extent that plaintiff acts in its capacity as a successor-in-interest to the original creditor or its assigns, references herein to plaintiff may include plaintiff's predecessor-in-interest.

^ Before commencement of this action, plaintiff informed defendant in writing that it intended to file this action and that this action could result in a judgment against the defendant that would include court costs allowed by California Code of Civil Procedure's 1033(b)(2). Attached hereto and incorporated herein by reference as exhibit E is a copy of the plaintiffs most recent attempt at resolving underlying obligation.

Then it goes on to explain Midland's modus operandi to all defendants.

First Cause of Action:

^ plaintiff realleges and incorporates by reference the foregoing paragraphs.

^ Defendant opened, used, and derive benefit from the account through defendants own use of the account or by another's use at the defendant's direction. By using the account, defendant expressly agreed or implied promise to repay plaintiff.

^ Within the last four years defendant became indebted on the account to plaintiff in the amount of 8K on an account statement in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff. {I never agreed to anything}

^ regular monthly statements were mailed to defendant listing the debts, credits, and balance due on the account, attached is exhibit D.

^ Defendant made last payment on account in 12/16 to Bank B.

^ Plaintiff has no record of defendant objecting to the monthly statements after receipt.

^ Plaintiff has made demand on defendant for repayment of account stated but defendant has failed to pay the balance due. Attached hereto and incorporated herein by reference as exhibit B is a true and correct copy of the first written communication requesting payment that was sent to the consumer by plaintiff.

^ As of the date of this complaint there is due and owing and unpaid some of 8K. The amount was arrived at by subtracting all payments and applying all credits (if any) to the charge-off balance of 8K as indicated on the charge-off statement, attached hereto as exhibit D.

Wherefore, plaintiff prays for judgment against defendant as follows:
#1) for unpaid balance of 8K
#2) costs of suit
#3) such other relief as the court may deem just and proper.

CLOSING: so perhaps you can see why I am quite nervous over this suit. It seems like somebody put a lot of effort into it and it's not like many of the cases I've been reading on the Internet. Perhaps I'm off-base here, but it looks like I'm in for a real battle.

The only strange thing is that I did try to contact the attorney and was not allowed to talk to him. A supervisor from the collection unit is as high up as I could go. They did offer to settle for 6000 but wouldn't go any lower. I told him see you in court.

Again, any input or wisdom would be greatly, greatly appreciated.

[Lady Bug]

<<<California Civil Procedure 1788.52 : (b) A debt buyer shall not make any written statement to a debtor in an attempt to collect a consumer debt unless the debt buyer has access to a copy of a contract or other document evidencing the debtor s agreement to the debt. If the claim is based on debt for which no signed contract or agreement exists, the debt buyer shall have access to a copy of a document provided to the debtor while the account was active, demonstrating that the debt was incurred by the debtor. For a revolving credit account, the most recent monthly statement recording a purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement.>>>

They do have a copy of my last payment attached to the lawsuit, which is quite concerning for me. It seems like they have complied with CCP 1788.52.

 

 

[sadinca]

2 hours ago, Lady Bug said:

CLOSING: so perhaps you can see why I am quite nervous over this suit. It seems like somebody put a lot of effort into it and it's not like many of the cases I've been reading on the Internet. Perhaps I'm off-base here, but it looks like I'm in for a real battle.

The documents attached as exhibits are pretty standard. Some plaintiffs only attach to the summons the minimum requirement to satisfy the CCP. Midland attaches affidavit and BOS for some reason. Perhaps an intimidation tactic. However as new as you are to this, you are already seeing things that don't add up (e.g. BOS that doesn't include your name anywhere or account number). 

 

Or appears the first cause if action is Account Sated. Is there a second cause of action? 

[sadinca]

I think you mentioned before you have 10 days to file your answer. I would suggest you serve a Bill of Particulars either before or after you file your complaint. 

Let me know if you don't know what a BOP is, or is you can't find a template and I will provide you with one. 

 

Also, please ask any question you may have and I or someone here will try to answer it. 

 

[Lady Bug]

Wow! Thank you for the quick response. Let me answer some of your questions.

There was no second cause of action listed.

With regard to the answer, does it seem reasonable just to file that stock PLD-C-010 form and deny everything, which should give me a little more time to work on my alternative defenses. I'm pretty sure the complaint is not verified (there was no statement at the end under penalty of perjury claiming verification).

And with regard to the BOP, could I just use the one that is available at https://www.scribd.com/docs ?  I'm sure with a little work I can figure out what to request, but is there something in particularly that I should be asking for? Like a bill of sale that has my name and account number on it – something more specific than they already have?

Here's another question I have. They screwed up the first contact letter pretty bad, as they seemed to have failed to comply with sections 1788.52(a)(3) and 1788.52(d)(1).  My question is so what? I mean, with those screw ups be enough to have the case thrown out? I would think probably not, but they would just be some ammunition that I had. And then what alternative defense would that go under?

So much to learn! But again, I greatly appreciate the help you've given me.

 

 

 

[sadinca]

4 minutes ago, Lady Bug said:

 With regard to the answer, does it seem reasonable just to file that stock PLD-C-010 form and deny everything, which should give me a little more time to work on my alternative defenses

In your place I would use the general denial form PDL 050? I don't have the form in my phone but tomorrow I can pay it tomorrow. 

[sadinca]

Bill of Particulars request.doc

 

Use those one

[sadinca]

10 minutes ago, Lady Bug said:

They screwed up the first contact letter pretty bad, as they seemed to have failed to comply with sections 1788.52(a)(3) and 1788.52(d)(1).  My question is so what? I mean, with those screw ups be enough to have the case thrown out? 

I can't recall this particular CCP well review them tomorrow. However, Violations would most likely produce sanctions rather than a dismissal is successfull. 

[Lady Bug]

Thanks again so much! Here's another question for you: just recently I have learned someone has stolen my identity and been opening up bank accounts under my name and then putting phony checks into the bank accounts and trying to collect money. In the worst case, they actually started a wire transfer from my current bank and try to wire money into the phony bank account. Luckily my alarms went off and I discovered the evildoing and put a stop to it. I had to file a police report and put an alert on my name at the credit bureaus.

QUESTION: is there any way I can use this to really get an itemized statement just to make sure that I really did make all of these credit card charges. I don't know how long it's been going on, so it seems like they would have to produce an itemized statement for me???

QUESTION: I understand that according to CCP section 367 that the debt buyer must be the "real parties of interest," otherwise they don't have standing to sue. Can anybody tell me any case law or even any sections of the code that deal with the real parties of interest. I am aware of Cloud v. Northrop Grumman Corp., which ruled that a party that lacks standing to sue must dismiss or amend, but is there anything else?

I guess I'm still trying to figure out what my defense is going to be and it seems that section 1788.52(b) or the CIVs sure isn't helping me... "For a revolving credit account, the most recent monthly statement recording the purchase transaction, last payment, or balance transfer shall be deemed sufficient to satisfy this requirement." They do have a copy of my last payment.

 

[Lady Bug]

May ask another question please: with regard to requesting documents, what is the difference between "Bill of Particulars" request, versus just sending a request of documents per section 454, besides the latter gives the plaintiff 10 days and the former gives the plane of 30 days?  I mean is there a ventricular strategy involved here?

Thanks again!

[sadinca]

9 hours ago, sadinca said:

They screwed up the first contact letter pretty bad, as they seemed to have failed to comply with sections 1788.52(a)(3) and 1788.52(d)(1).  My question is so what? I mean, with those screw ups be enough to have the case thrown out? 

in your post above, under First Cause of Action paragraph 5, "^ Defendant made last payment on account in 12/16 to Bank B." i think this satisfies the 1788.52 (a)(3) requirement. as to 1788.52(d)(1) you mention the attached initial notification did not meet all the requirements. A violation would get Midland fined up to $1K but i wont get the case thrown out. 

[sadinca]

2 hours ago, Lady Bug said:

QUESTION: is there any way I can use this to really get an itemized statement just to make sure that I really did make all of these credit card charges. I don't know how long it's been going on, so it seems like they would have to produce an itemized statement for me??

This is a good question. Midland is using the Account Stated theory on the claim. on this theory, Midland has to proof that you owed money from previous transactions, that by word or conduct you agreed to the amount stated in the account, that by word of conduct you promised to pay the amount. Midland would only need to provide an statement reflecting a previous transaction, or payment, and the charge off statement establishing the debt. 

unfortunately for all of us who have been sued on an account stated theory is California Courts have established precedence stating "the agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. if the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct and rendered." Zinn, supra, 271 Cal.App.2d

"An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the lanance struck is due and owing from one party to another. when the account is assented to, it becomes a new contract. an action on it is not founded upon the original items, but upon the lance agreed to by the parties..." Inquiry may not be had into those matters at all. It is upon the new contract by an under which the parties have adjusted their differences and reached an agreement." Gleason v. Klamer (1980) 103 Cal. App.3d

 

so in short, you could request an itemization of the account, but Midland is not required to produce it.  

[sadinca]

duplicate*

[sadinca]

2 hours ago, Lady Bug said:

May ask another question please: with regard to requesting documents, what is the difference between "Bill of Particulars" request, versus just sending a request of documents per section 454, besides the latter gives the plaintiff 10 days and the former gives the plane of 30 days?  I mean is there a ventricular strategy involved here?

CCP 454 or Bill of Particulars is not considered discovery, but rather an amplification of the complaint. 

Midland will most likely reply to the BOP demand with boilerplate objections and caselaws as to how BOP is inappropriate to an Account Stated cause of action. 

[Lady Bug]

Got it. Thanks again.

 

[Lady Bug]

Another question, if you please:

With what you know so far, do you think I stand a decent chance of at least being able to negotiate this down to, for example, $3500.  I've spoken with a couple of attorneys who both would take the case. One wants $3500 with no guarantees. The other wants $650 +25% of whatever money he gets taken off the account.  Just by speaking with the supervisor in their claims department (I wasn't allowed to talk to the attorney), I was able to get it down to $6500. Just trying to figure out the best way to mitigate this alleged debt.  And of course I know you're not an attorney and any opinions you put forth are strictly for educational purposes only and should never be construed as legal advice.

[sadinca]

you are doing a great job doing your own research, asking good question, and grasping the process. Midland should be afraid of taking your case all the way to court. 

[sadinca]

can i PM you?

[Lady Bug]

thank you so much. Absolutely if I can figure out how to do it.

 

[Lady Bug]

I tried to PM you.  Just FYI, I'm heading into work now, so I probably won't be checking my emails until later this evening.  Thanks again for all your help.

[Lady Bug]

Thanks so much for your answers. What if I wanted to muddy the waters by throwing in identity fraud. I do have a police report and I have copies of the fake check, and bank account notices from two different banks where they successfully opened up accounts and tried to get some money in there.  Although this happened just last month.

Couldn't I ask for records from Midland and when they deny them, couldn't that be possibly a grounds for appeal (I'm thinking ahead)?  Or is that burden of proof entirely on me. I mean what I have to request copies of all my statements from bank B and bank A?

[sadinca]

I probably wouldn't use that if i were in your shoes. first, due to the recentness of the identity fraud. second, the burden of proof would be on you to provide police reports, or records or communications made by you to the original creditor disputing the account. 

at this point, in my opinion, it would be better to maintain the strategy of denying having any knowledge of the account, than claiming the account is the product of fraud. 

 

@BV80  @shellieh98  @RyanEX   what do you guys thing?

[Lady Bug]

COULD THIS COMPLAINT BE CERTIFIED?

Although I've read that these JDB complaints are virtually never certified, after reading through this 40 page document, I did discover this document attached:

CERTIFICATE OF CONFORMITY

STATE OF UTAH CITY OF SALT LAKE

the undersigned does hereby certify that he/she is an attorney-at-law duly admitted to practice in the state of Utah as a residence ofXXXX County of Utah; that he/she is a person duly qualified to make this certificate of conformity. That the foregoing acknowledgment by XXXXXXXX named in the foregoing instrument taken by XXXXX notary in the state of Utah conforms with the law of the state of Utah, being the state in which it was undertaken; and when executed by XXXXX in the manner indicated will qualify as a valid and effective sworn statement in such state.

 

__________ scribbled signature, dated October 2017.

Could somebody please let me know, for I know it makes a huge difference with regard to my answer. Thanks so much in advance!

PS: this "certificate of conformity" came right after a notarized document which was entitled portfolio level affidavit of sale by original owner. This is the document that stated bank B "sold (or caused to be sold) a pool of charged-off accounts to Midland funding." So I guess I can't tell if this certificate of conformity applied to the sale of the debt to Midland, or to the entire complaint.