Lady Bug

Starting a Battle with Midland funding in California

Recommended Posts

Hi again,

I have one more question. I noticed that the judge assigned to this case is called a "case management judge." Is that a "real" judge? I read in this form that it's probably best to have your case heard by a real judge and that I could make a motion for this to happen. Anybody have any idea on this?

Share this post


Link to post
Share on other sites

I think I may have answered my own question. I googled him and ballotpedia.org says that he is a nonpartisan judge of the superior court of Santa Clara California and won [the] election outright in the primary on June 5, 2018. So I would think he is a "real judge," but doesn't have much experience. Am I reading this correctly?

Thanks again!

Share this post


Link to post
Share on other sites

I'm sorry, one more question:  I'm going to start working on my demand for a Bill of Particulars, and just read online that a Bill of Particulars is only available for actions that are on "an account."

The first page of the complaint states that, under "complaint for:" "(1) account stated."

There are 31 paragraphs listed under that. And that is it.

Under "on the first cause of action:" there are three paragraphs: unpaid balance, costs of suit, and "such other relief as the court may deem just and proper."

And that is the end of the complaint. Next come the exhibits.

QUESTION: so may I assume that this action is based on the "an account" principle, which entitles me to send the attorneys a Bill of Particulars?

Thanks again!

Share this post


Link to post
Share on other sites
52 minutes ago, Lady Bug said:

CERTIFICATE OF CONFORMITY

STATE OF UTAH CITY OF SALT LAKE

I don't think this complaint is verified. It don't think this satisfies CCP 446. 

A verification would have to be signed by one of Midland Lawyers in San Diego starting the allegations within the complaint are true, or believe to be true. 

I don't see how a jdb could assert the allegations to be true, when jdb came in the picture after the event. 

Share this post


Link to post
Share on other sites

I apologize (this is my last chance to work on this before I found my answer).

I would like to attach a few alternative defenses to my answer. I'm scared that if I don't raise them in the answer, I may lose the right raise them at a later date.

#1) their first written communication with me looks to be full of violations in accord with 1788.52(d).  QUESTION: which alternative defense would this come under?

#2) because my identity has been stolen (I have proof of this), I would like to leave that open as a defense. QUESTION: which alternative defense would this come under?

#3) understand that CCP section 98 is our best friend. Is there any alternative defense I need to raise which would help support that defense?

And finally, when in this process do I file for further information under CCP 96?  This looks like pretty powerful stuff, but it has to be served between 45 and 30 days "prior to the date first set for trial...."  I don't even have a trial date yet, so will I have time to file this, or should I just file it with the answer (to the court, POS to applicant) and request for Bill of Particulars (POS to the applicant)?

Thank you again so very much and sorry for the bombardment of questions!

Share this post


Link to post
Share on other sites
54 minutes ago, Lady Bug said:

I think I may have answered my own question. I googled him and ballotpedia.org says that he is a nonpartisan judge of the superior court of Santa Clara California and won [the] election outright in the primary on June 5, 2018. So I would think he is a "real judge," but doesn't have much experience. Am I reading this correctly?

Thanks again!

Here is the OC, we only have one judge in charge of collection lawsuits. He may be non partisan but he sure is pro jdb. The judge you mention may be the one and only

Share this post


Link to post
Share on other sites

Thank you for your quick reply! You're awesome!

What is the "OC?" Where you given me a link to that? How can you tell he is PRO JDB?  I think your message got cut off, because it only said "the judge you mentioned may be the one and only...." That's all I got.

Thanks again for all your help!

Share this post


Link to post
Share on other sites
55 minutes ago, Lady Bug said:

I'm sorry, one more question:  I'm going to start working on my demand for a Bill of Particulars, and just read online that a Bill of Particulars is only available for actions that are on "an account."

The first page of the complaint states that, under "complaint for:" "(1) account stated."

There are 31 paragraphs listed under that. And that is it.

Under "on the first cause of action:" there are three paragraphs: unpaid balance, costs of suit, and "such other relief as the court may deem just and proper."

And that is the end of the complaint. Next come the exhibits.

QUESTION: so may I assume that this action is based on the "an account" principle, which entitles me to send the attorneys a Bill of Particulars?

Thanks again!

Caselaws state defendants are not  entitled to a BOP on account Sated. Since the account stated theory relies only on the charge off statement therefore there's is nothing to itemize. 

Let plaintiff object. 

Share this post


Link to post
Share on other sites
26 minutes ago, Lady Bug said:

their first written communication with me looks to be full of violations in accord with 1788.52(d).  QUESTION: which alternative defense would this come under?

Just say plaintiff failed to comply with CCP 1788.53(d). 

27 minutes ago, Lady Bug said:

because my identity has been stolen (I have proof of this), I would like to leave that open as a defense. QUESTION: which alternative defense would this come under?

This will have to be raised as a fact. Something along the lines of Defendant is a victim of identity theft and does not owe this debt. 

 

Share this post


Link to post
Share on other sites
40 minutes ago, Lady Bug said:

Thank you for your quick reply! You're awesome!

What is the "OC?" Where you given me a link to that? How can you tell he is PRO JDB?  I think your message got cut off, because it only said "the judge you mentioned may be the one and only...." That's all I got.

Thanks again for all your help!

OC is orange county

I meant to say the judge may be the one and only to handle collections in your county

Share this post


Link to post
Share on other sites
28 minutes ago, Lady Bug said:

I understand.  <<<Let plaintiff object>>>.  Does that mean I should file it anyway and then let them object?

Serve it, but don't file it. BOP does not get filed in court

Share this post


Link to post
Share on other sites

I was at my kids soccer game, sorry I missed some questions. 

In regards to CCP 96 & 98 they are no affirmative defense for those. Plaintiff will have to serve you a CCP 98 of they want to authenticate any business records from OC with out producing a live witness closer to trial at about the same time you will serve ccp96 request 

 

Share this post


Link to post
Share on other sites

Hi all,

I finally received papers from the court and a trial is set for January.  

I'm a little confused as to how to proceed because M*dland has not started the discovery process yet.

In fact, I  haven't heard anything from them since they denied my Bill of Particulars last winter. The corresponding address is still their headquarters in San Diego and the same attorney I've been dealing with is still listed as the corresponding Attorney, so they haven't assigned the case to anybody local just yet.

So my question is how do I proceed? Should I start the discovery process myself and if so, can I just use the discovery document that ASTmedic has generously given us on his thread?

Thanks in advance!

Share this post


Link to post
Share on other sites
6 hours ago, Lady Bug said:
 

Hi all,

I finally received papers from the court and a trial is set for January.  

I'm a little confused as to how to proceed because M*dland has not started the discovery process yet.

In fact, I  haven't heard anything from them since they denied my Bill of Particulars last winter. The corresponding address is still their headquarters in San Diego and the same attorney I've been dealing with is still listed as the corresponding Attorney, so they haven't assigned the case to anybody local just yet.

So my question is how do I proceed? Should I start the discovery process myself and if so, can I just use the discovery document that ASTmedic has generously given us on his thread?

Thanks in advance!

Not unusual. I didn't her from them at all until the end when they sent me discovery requests at the deadline (about 65 days before trial).

Share this post


Link to post
Share on other sites

Thanks, that makes me feel better.  Did you just wait until they sent you the request or did you send a request to them before hand?

Share this post


Link to post
Share on other sites

Hi all,

with regard to my case, I noticed that the bill of sale does not mention my name or the account number for the alleged credit card debt? There are two black rectangular boxes which have blocked out some information. Furthermore, Comenity Bank is not the original credit card company, as stated in the complaint.  (See Below document) Here's my question: in my "first request for production of documents" should I specifically ask for the non-redacted bill of sale and documents from the real original credit card company?

I also noticed that the "affidavit of sale by original creditor," has some problems (See below document):

#1 it was signed by the president of committee the bank in Utah (I'm in California). So I'm wondering how she is going to be available for subpoena service within 150 miles of my city in California? It seems like a major problem with their case to me. Am I wrong?

#2) the affidavit of sale states "[the] SELLER sold (or caused to be sold) a pool of charged-off accounts to Midland funding...." Again, I don't see my name or account number anywhere in this document. So how do I know that my account was included in this pool? It seems like another major problem with this case to me. Am I wrong?

#3) with regard to #2), should I specifically request proof that my account number was included in this pool of charge-often accounts? Or should I bring that up at at trial?

I think ASTmedic didn't want to tip his hand and didn't ask for specific things like this. Just wondering what the discovery thoughts are.

Thanks so much in advance!

 

Bill-of-Sale.jpg

Affidavit-of-sale.jpg

Share this post


Link to post
Share on other sites
On 9/9/2019 at 7:57 PM, Lady Bug said:

Thanks, that makes me feel better.  Did you just wait until they sent you the request or did you send a request to them before hand?

I don't remember specifically, but I don't see my own discovery request in my files, so I think I just waited.

Share this post


Link to post
Share on other sites

Hi  @Lady Bug!  I just sent you a PM with my RFD and the strategy behind it.

7 hours ago, Lady Bug said:

I think ASTmedic didn't want to tip his hand and didn't ask for specific things like this. Just wondering what the discovery thoughts are.

You are right. Some, like @ASTMedic prefer to send discovery requests, see what comes back (usually junk), and then hold off on going the Motion to Compel (MTC) route.  This strategy is the, "why force them to dig and come up with better evidence?  Let them just come to trial with their current junk evidence.  I'll make sure to point out that their evidence is junk in a MIL and in court."

Another strategy (I could mention @sadinca here), is to ask for the "Credit Card Account Purchase Agreement" mentioned in their junk Bill of Sale (line #2 in your Bill of Sale that you posted above).  They will balk at this request, usually citing some type of attorney-client privilege, or trade secret bs.  Then you file a well crafted MTC that the judge should grant you. 

Why?  Because usually in that "Credit Card Purchase Agreement" there is something similar to this:

Purchase and Sale. On each Funding Date, during the Transfer Period, Seller shall sell and Buyer shall buy all right, title and interest in and to the Receivables with respect to which Buyer has received a Notification File. Seller agrees to sell the Receivables to Buyer and Buyer agrees to purchase the Receivables, without recourse and without warranty of any kind (including, without limitation, warranties pertaining to title, validity, collectability, accuracy or sufficiency of information) except as specifically set forth herein, on the terms and subject to the conditions set forth below.

Leading to this fact:  If the OC cannot guarantee the accuracy of the records sold to JDB as it is spelled in the contract, how can any other witness testify to the accuracy of JDBs records? 

And thus, having another piece of ammunition to use in court.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.