Stubis

Midland Funding Lawsuit...

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1 hour ago, Harry Seaward said:

Are these two different lawsuits, or are they suing both accounts under the same complaint? 

They are suing both accounts under the same complaint. Each has roughly $2500 owing.

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There area a lot of California cases here about using CCP98 to win in court. The other option is using arbitration to 'encourage' a dismissal. Them suing two different OC accounts under one lawsuit could be interesting in arbitration. I don't know that we've ever seen that happen.

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You do not have an official address in Los Angeles County. Since your home is in Nevada County, that is considered your domicile and where they can sue you.

That said, I would look into a free consult with an attorney and see if you can get the case dismissed because the combined 2 different subject matters in one case when they should have filed 2. You might, you might not.

If the court does not buy that, then immediately MTC for arbitration on both accounts and if granted (probably will be), open 2 different arbitration cases (one for each account). That will double what Midland will expend trying to collect on the debts.

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Trying to wrap my head around all the legal language and abbreviations. Have read up on CCP98 but it seems that this is relevant only if you are disputing the validity of the CC’s that Midland is suing you for. I am clearly the person who owns the CC’s and was unable to keep paying on them. 

Also, the “motion to compel” seems to have two options available. AAA or JAMS. How do I find out which one I should use in this case?

And in reference to the letter (the response to the suit that I have 13 days left to send)  that I have to write to the Court and to Midland’s lawyers...do I state the reasons why I was unable to continue paying on the debt as I have briefly outlined above? What should the letter contain? Apologies, thoroughly confused...

Thank you...

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23 minutes ago, Stubis said:

Trying to wrap my head around all the legal language and abbreviations. Have read up on CCP98 but it seems that this is relevant only if you are disputing the validity of the CC’s that Midland is suing you for. I am clearly the person who owns the CC’s and was unable to keep paying on them. 

Also, the “motion to compel” seems to have two options available. AAA or JAMS. How do I find out which one I should use in this case?

And in reference to the letter (the response to the suit that I have 13 days left to send)  that I have to write to the Court and to Midland’s lawyers...do I state the reasons why I was unable to continue paying on the debt as I have briefly outlined above? What should the letter contain? Apologies, thoroughly confused...

Thank you...

Read this decision from the CA Supreme Court.

https://scholar.google.com/scholar_case?case=3632501496338703386&q=”Meza+v.+portfolio”&hl=en&scisbd=2&as_sdt=4,104

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45 minutes ago, BV80 said:

I'm not sure what I'm reading here....

In sum, section 98(a) is concerned with types of process through which a party can summon a person to appear at trial and inherits rather than alters the basic framework of rules governing service of these forms of process. With a civil trial subpoena ad testificandum, personal delivery upon the subpoenaed person is generally required for effective service. (See § 1987, subd. (a).) Thus, when an affidavit is submitted by someone who can be directed to appear in person at trial only through such a subpoena, a local address at which the affiant is personally present for pretrial service is necessary — unless, of course, the person fits within a recognized exception to the personal service rule, in which case an address that permits proper service upon an appropriate representative will suffice. When an affiant also can be summoned to appear at trial through a notice to attend served on an attorney (§ 1987, subd. (b)), however, either a local address where the affiant will be personally present for service of a subpoena 
or a local address of the attorney will suffice.

Are they saying that any witness can be served at their attorney's office, or only if that witness falls into one of the "recognized exceptions"?

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1 hour ago, Stubis said:

Trying to wrap my head around all the legal language and abbreviations. Have read up on CCP98 but it seems that this is relevant only if you are disputing the validity of the CC’s that Midland is suing you for. I am clearly the person who owns the CC’s and was unable to keep paying on them. 

Also, the “motion to compel” seems to have two options available. AAA or JAMS. How do I find out which one I should use in this case?

And in reference to the letter (the response to the suit that I have 13 days left to send)  that I have to write to the Court and to Midland’s lawyers...do I state the reasons why I was unable to continue paying on the debt as I have briefly outlined above? What should the letter contain? Apologies, thoroughly confused...

Thank you...

Don't concern yourself with CCP 98 at this point - that comes into play if you answer the lawsuit as is and you are further along in the process, approaching trial. It will indeed help you if that's what you end up doing.

Your bigger questions are 1) dealing with the issue of your address, that you live in Los Angeles but are being sued in a different county. 2) whether it was appropriate for them to sue on two accounts in one lawsuit (maybe it is, but I have not seen that before). And 3) exploring arbitration as an option.

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Regarding Meza v. Portfolio Recovery Associates, everything is fine.

See calawyer's thread: https://www.creditinfocenter.com/community/topic/330400-ccp-98-decision/

Quote

Cal Supremes held that a CCP section 98 declarant must be subject to actual personal service at the address given, and that the requirement is not satisfied by the defendant/defense counsel agreeing to accept service of a subpoena at that address. 

 

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32 minutes ago, Harry Seaward said:

I'm not sure what I'm reading here....

In sum, section 98(a) is concerned with types of process through which a party can summon a person to appear at trial and inherits rather than alters the basic framework of rules governing service of these forms of process. With a civil trial subpoena ad testificandum, personal delivery upon the subpoenaed person is generally required for effective service. (See § 1987, subd. (a).) Thus, when an affidavit is submitted by someone who can be directed to appear in person at trial only through such a subpoena, a local address at which the affiant is personally present for pretrial service is necessary — unless, of course, the person fits within a recognized exception to the personal service rule, in which case an address that permits proper service upon an appropriate representative will suffice. When an affiant also can be summoned to appear at trial through a notice to attend served on an attorney (§ 1987, subd. (b)), however, either a local address where the affiant will be personally present for service of a subpoena 
or a local address of the attorney will suffice.

Are they saying that any witness can be served at their attorney's office, or only if that witness falls into one of the "recognized exceptions"?

Service on the attorney only applies under certain exceptions.   Portfolios witness did not fit the exceptions.  Here’s what the court said.

”Effective use of a notice to attend is limited to situations in which the witness whose attendance is desired is a party or someone closely affiliated with a party, as specified by statute. (§ 1987, subd. (b).) Because Eyre is neither, his appearance as a witness at trial could be secured only by a subpoena, which by law must be personally served, absent an exception — none of which applies here.”

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28 minutes ago, BV80 said:

Service on the attorney only applies under certain exceptions.   Portfolios witness did not fit the exceptions.  Here’s what the court said.

”Effective use of a notice to attend is limited to situations in which the witness whose attendance is desired is a party or someone closely affiliated with a party, as specified by statute. (§ 1987, subd. (b).) Because Eyre is neither, his appearance as a witness at trial could be secured only by a subpoena, which by law must be personally served, absent an exception — none of which applies here.”

I saw that, but then later there was the part I quoted that said service on an attorney was good enough, so I wasn't sure if the 'good enough' was only in those certain exceptions.

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59 minutes ago, RyanEX said:

Regarding Meza v. Portfolio Recovery Associates, everything is fine.

It doesn't seem like it.

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8 minutes ago, Harry Seaward said:

I saw that, but then later there was the part I quoted that said service on an attorney was good enough, so I wasn't sure if the 'good enough' was only in those certain exceptions.

This is part of what you cited.

Thus, when an affidavit is submitted by someone who can be directed to appear in person at trial only through such a subpoena, a local address at which the affiant is personally present for pretrial service is necessary — unless, of course, the person fits within a recognized exception to the personal service rule, in which case an address that permits proper service upon an appropriate representative will suffice. When an affiant also can be summoned to appear at trial through a notice to attend served on an attorney (§ 1987, subd. (b)), however, either a local address where the affiant will be personally present for service of a subpoena or a local address of the attorney will suffice.”
 
In the above, the court states that the only way service is permitted on a representative is if the witness “fits within a recognized exception to the personal service rule.”  Here are the exceptions the court listed.
 
There are a few established exceptions to the general requirement that, in order for a party to compel a person to appear at a civil trial, that person must be personally served with a subpoena. When the subpoenaed person is a minor, the subpoena must be served on a parent, guardian, or other person identified by statute.  

Likewise, certain public employees (such as police officers and firefighters) need not be personally served with subpoenas to secure their appearance at trial, at least when their testimony would concern matters associated with their professional duties. In these situations, effective service of a trial subpoena can occur by personal service or by "delivering two copies to [the prospective witness's] immediate superior at the public entity by which he or she is employed or an agent designated by that immediate superior to receive that service." (Gov. Code, § 68097.1, subd. (a); see also id., §§ 68097.1, subd. (b), 68097.3.)

Furthermore, no subpoena at all is required for the production at a civil trial of a party, or "a person for whose immediate benefit an action or proceeding is prosecuted or defended or . . . anyone who is an officer, director, or managing agent of any such party or person." (§ 1987, subd. (b).) Such a party or person may be summoned to appear at trial through service "upon the attorney of that party or person" of "written notice requesting the witness to attend . . . a trial," with service to occur no less than "10 days before the time required for attendance unless the court prescribes a shorter time."

The court stated that Portfolio’s witness did not fit those exceptions.

 
 
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I have to respond to the summons next week. 

I will detail the circumstances that led to the CC default, advise the court and the lawyers that I now reside eight hours away in a different County, question the validity of the lawsuit based on the fact that they are suing on two different accounts,  and request that should this matter continue I wish to pursue arbitration.

Any feedback on this strategy would be appreciated. 

Thank you.

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On 5/21/2019 at 5:54 AM, Stubis said:

I have to respond to the summons next week. 

I will detail the circumstances that led to the CC default...

Oh no, don't do that. You don't want to admit to any details of the acct, ownership of the account, anything that ties you to the acct. If you do that, you're giving them evidence against you and, potentially, a trial victory. Force them to prove anything and everything, don't help - that is the basic CA game plan and it works very well in these lawsuits because CA code places the burden of proof on them to show that this is your debt, not the other way around :)

Besides, the answer forms don't require you to explain anything anyway, if you'll be using the general denial it'S just a simple fill-in of your name on the correct line & that will deny the complaint in it's entirety (you don't have to check box #2 if you don't want to). https://www.courts.ca.gov/documents/pld050.pdf

This is a good read on CA strategy, it's from 2012 but most everything still applies: https://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

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I responded to the summons before the deadline and forwarded the "response" document to Mandarich Law Group (representing Midland Funding). I was planning to now file the Motion to Compel Arbitration (MTC) and contact AAA but when I returned home there was a letter from Mandarich containing a "Request For Admissions", a "Request For Production of Documents" and a "Special Interrogatories". It appears as though they are ignoring my request for Arbitration and are moving to Trial. I believe this is their "discovery" phase? 

Do I respond to these requests? And in what manner?

Do I continue with my MTC? 

Do I contact AAA and move forward with the Arbitration application process? 

Thank you...

 

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I would file the MTC and request that it be heard before answering any discovery. Once you get into discovery, you might have given up your right to arbitration.

Midland will send discovery and ignore any request for arbitration short of a MTC in hopes that you will not know that and continue with the case in court. Concentrate on the MTC and get that into the judge's hands ASAP.

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One more thing...

In Mandarich's correspondence there was no attached letter explaining anything and no deadline for a response. 

The Court date was originally set for October 21st. 

 

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It's too bad OP has not contacted a consumer attorney yet to see if they are even allowed to file 1 lawsuit for two different accounts like this, as suggested twice months ago.  Probably could have dispatched with this long ago.

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I have a "Motion To Continue Trial" hearing coming up. I think this is a pre-trial hearing of my MTC Arbitration. The actual trial date is currently set for the following week, but will hopefully be canceled. 

I understand why I am requesting the opportunity for arbitration. Firstly, I don't believe this matter needs to be heard in a court of law.

Secondly, I believe the opportunity to work with an Arbitrator will allow me to explain in detail the circumstances that led to my financial crisis (major stomach surgery, a year off work, the loss of my job of 20 years, etc.), and will allow a detailed look at my current finances, a possible payment plan, and ultimately lead to a resolution of this matter that is satisfactory to both parties.  

Are there other matters or reasons that will need to be presented to the judge at the MTCT that will help with his decision on the MTCA...?

Thanks in advance...

 

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40 minutes ago, Stubis said:

I have a "Motion To Continue Trial" hearing coming up. I think this is a pre-trial hearing of my MTC Arbitration. The actual trial date is currently set for the following week, but will hopefully be canceled. 

I understand why I am requesting the opportunity for arbitration. Firstly, I don't believe this matter needs to be heard in a court of law.

Secondly, I believe the opportunity to work with an Arbitrator will allow me to explain in detail the circumstances that led to my financial crisis (major stomach surgery, a year off work, the loss of my job of 20 years, etc.), and will allow a detailed look at my current finances, a possible payment plan, and ultimately lead to a resolution of this matter that is satisfactory to both parties.  

Are there other matters or reasons that will need to be presented to the judge at the MTCT that will help with his decision on the MTCA...?

Thanks in advance...

 

Not very compelling reasons to give to a judge.  You may not think the case needs to be heard in a court of law, but the plaintiff probably does.  The second argument, they will say, can be made to the court as well as an arbitrator.

Better reasons for arb:  1) it's your RIGHT under the contract;  2) the law favors arb (including the Supreme Court); 3) arbitration is a private proceeding, whereas court is public.  Everything done in court is a matter of public record.  You prefer your financial matters to be private.

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13 hours ago, Stubis said:

I believe the opportunity to work with an Arbitrator will allow me to explain in detail the circumstances that led to my financial crisis

You need to get this out of your mind completely.  There is no basis in law to help you or do any favors for ANY circumstances.  Law is about laws and contracts only.  You have a contract to repay the credit cards and that contract says nothing about circumstances that allow less than 100% of the amount owed to be paid.  HOWEVER, that contract also says you have a right to arbitration and so does the law.  You need to read the arbitration thread here. The link is in my signature below.  You need to understand WHY we advocate for using arbitration.  It has nothing to do with telling the arbitrator that you ended up in a situation unable to pay.  No one cares about that.  It is all about using the LAW and the CONTRACT to your advantage where it will cost Midland more to collect from you than you owe, giving them a lose-lose situation and wanting to drop it all instead.  LAWS and CONTRACTS only.  Not why you got into a hole.

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