jon_117

Being sued in California - Opinions on my strategy

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Hello everyone,

I have spent the last several days reading through this forum and gathered extremely valuable information.

I will post the details of my case then ask my questions at the end of the post. I decided arbitration is the best route.

 

1. Who is the named plaintiff in the suit?

Midland Credit Management, Inc.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

None. Only 8 different attorney names with their State Bar Numbers.

3. How much are you being sued for?

$5300

4. Who is the original creditor?

Synchrony Bank; transferred to Capital One. (my issue and questions about this at end of post).

5. How do you know you are being sued? 

Served a summons and complaint.  

6. How were you served? 

Substituted Service; the documents left with a member of my household then mailed to me USPS First Class mail.

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?

A few collection letters sent by them. Nothing sent by me.

9. What state and county do you live in?

Los Angeles County, California

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

06/2019

11. When did you open the account (looking to establish what card agreement may be applicable)?

03/2017

12. What is the SOL on the debt?

4 years

13. What is the status of your case?

Latest update on the court site states: Proof of Service by Substituted Service.

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? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I have 40 days to respond. ~25 remaining as of today.  I will attach the 4 page complaint to this post. No interrogatory received.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

They sent 3 Exhibits.

Exhibit A:

·         Bill of Sale – for a batch sale of account files between Midland and Capital One.

·         Affidavit of Sale of Account by Creditor – signed by a Capital One VP.

·         Certificate of Conformity – signed by an attorney from Virginia.

·         Identical copies of the Affidavit and Certificate of conformity (error on their part?)

·         A document with 2 columns labeled “Field” and “Field Data”- it lists my name address, date account was opened, etc.

Exhibit B:

·         A monthly statement from Synchrony Bank- showing a balance of~$4200

Exhibit c

·         A monthly statement from Capital One – it shows a balance of ~$5300, the exact amount Midland is suing for.

 

 My questions and issues are:

 

1.      The original creditor was Synchrony Bank, then I received notices that it was being transferred to Capital One. On the DOFD my account was still with Synchrony Bank. The lawsuit only mentions Capital One but the monthly statement Midland submitted in exhibit B is from Synchrony bank and states that the account is owned and serviced by Synchrony.

 

2.      I am currently drafting my Memorandum of Points and Authorities but the issue of addressing Synchrony vs Capital One is giving me the most trouble. Specifically, the beginning of my P and A, “Factual background”. I have attached only sections A and B of the Points and Authorities to my post for reference. Am I addressing/acknowledging the accounts issues correctly?

3.      Do I use the credit card agreement from the date of account opening or the DOFD? The arbitration language is identical for both agreements.

 

My current strategy is:

1.      Get my affidavit and card agreement notarized, first choosing the correct agreement.

2.      File my MTC,  Memo of Points and Authorities with notarized affidavit and credit card agreement at the same time. In California, the MTC Arbitration may be filed IN LIEU of an Answer/general denial. There is no need to file both. This is covered in Calif Code of Civil Procedure 1281.7

 

I welcome any advice on my current strategy as well as my documents. I’d love to have those of you with experience to give their opinion on what I have so I don’t make any disastrous mistakes I may have overlooked.

I’m also referencing this posting as he won his MTC and lives in the same county.

 

 

Complaint Img.pdf Redacted MEMO_ P and A.pdf

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I forgot to attach the agreements from opening date vs the DOFD. I apologize if this is too much or unnecessary information but I don't want to leave out anything pertinent.

Q1_2017_USE_Synchrony Bank - Walmart MasterCard Account Agreement and Pricing Information.pdf Q3_2019_USE_Walmart MasterCard Account Agreement and Pricing Information.pdf

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8 hours ago, jon_117 said:

3.      Do I use the credit card agreement from the date of account opening or the DOFD? The arbitration language is identical for both agreements.

 

Agreements, especially credit card agreements, can be amended.  If one has had a card more than a few years, chances are it was amended at least once. The correct agreement would be the one that was in effect when the account went into default and was never brought back to a current status.  

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23 hours ago, BV80 said:

Agreements, especially credit card agreements, can be amended.  If one has had a card more than a few years, chances are it was amended at least once. The correct agreement would be the one that was in effect when the account went into default and was never brought back to a current status.  

Thank you for the clarification. That detail will allow me to properly finish my Memorandum of Points and Authorities.

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