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Civil Unlimited Case, Sued by Midland in CA, trial in 35 days


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Here is my case:

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.)
    - Jack H Pogosian, Christina Arnold

3. How much are you being sued for?
    - $26,650.00


4. Who is the original creditor? (if not the Plaintiff)
    - Citibank and Capital One

5. How do you know you are being sued? (You were served, right?)
    - Summon served at PO Box

6. How were you served? (Mail, In person, Notice on door)
    - In 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?
    - None

9. What state and county do you live in?
    - California, Orange County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
    - According to their claim, in 5/2018 & 7/2018

11. What is the SOL on the debt?
    - 4 years in California

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name)
    - Complaint filed: 06/08/20; Summons & Complaint served: 06/19/20
    - General denial (PLD-C 010 form) Answer to be filed with Affirmative Defenses: 07/13/20
  


13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
    - No

14. Did you request debt validation before the suit was filed? (Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.)
    - No

15. 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.
    - 1 week

16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or on an open book account, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.
    - Contract, Rule 3.740 collections (09)

 17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.
    - No.  The complaint is not verified.

18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?
    -No

19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
1.  Bill of Sale and Assignment signed by Citibank employee. 

2.  Asset Schedule showing batch of accounts being sold through with numbers blacked out. 

3.  Affidavit of Sale of account by Original Creditor signed by Citibank employee, Terri Bergman, notarized in Missouri.  

4.  Certificate of Conformity for Terri Bergman. 

5.  Computer printout from Citibank with my name on it, account number, SSN, address, Account open, Charge off date and balance. 

6.  2 statements from Midland for Citibank account.

7.  2 Statements from Citibank dated 5/18 & 11/18.

8.  Bill of Sale for Capital One, signed by Capital One employee, forward flow receivable sale agreement.  

9.  Affidavit of Sale of account by creditor signed by Capital One employee, notarized in Virginia.

10.  Certificate of Conformity.

11.  Computer printout from Citibank with my name on it, account number, SSN, address, Account open, Charge off date and balance. 

12.  2 statements from Midland for Capital One account.

13.  2 Statements from Capital One dated 7/18 & 8/19.

 

I requested a BOP and received an Declaration in Lieu of Testimony from Midland, not the Original Creditor.  My plan is to subpoena her 20 days before trial.  (She is from Minnesota and using an address that is within 150 miles of the courthouse.)  

When I lookup my case on the court website, it states "Jury Trial is scheduled for my X/XX date".  Will this really be a jury trial or ruled by a judge?  

I want to file a Motion in Limine and have read other posts here where the ruling judge said MIL can only be used for jury trials, so I want to be sure I can use the MIL vs another motion.

 

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Is this two accounts, from Citi and Cap One, that Midland bought and has combined into one lawsuit?  Could you break down the amounts, in ballpark figures, for each?  Like, $x for Citi, and $y for Cap One.

For Citi, you should be able to use arbitration.  Not for the Cap One account, unless it was opened before 2010.  Cap One removed arb from their contracts after that, if I recall correctly.

But, for the Cap One account, Cap One uses Virginia law, where the SOL is 3 years.  CA has a borrowing statute, case law is Resurgence v. Chambers.  So if you last paid in 2018, for the Cap One account, SOL expired in 2021.  I would file a motion to dismiss the Cap One portion of the case as time-barred.  And consult a consumer attorney to press FDCPA claims against Midland, for violating the law (suing on time-barred debt).

 

 

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2 hours ago, nobk4me said:

Is this two accounts, from Citi and Cap One, that Midland bought and has combined into one lawsuit?  Could you break down the amounts, in ballpark figures, for each?  Like, $x for Citi, and $y for Cap One.

For Citi, you should be able to use arbitration.  Not for the Cap One account, unless it was opened before 2010.  Cap One removed arb from their contracts after that, if I recall correctly.

But, for the Cap One account, Cap One uses Virginia law, where the SOL is 3 years.  CA has a borrowing statute, case law is Resurgence v. Chambers.  So if you last paid in 2018, for the Cap One account, SOL expired in 2021.  I would file a motion to dismiss the Cap One portion of the case as time-barred.  And consult a consumer attorney to press FDCPA claims against Midland, for violating the law (suing on time-barred debt).

 

 

OP states :

13.  2 Statements from Capital One dated 7/18 & 8/19.

- Complaint filed: 06/08/20; Summons & Complaint served: 06/19/20
    - General denial (PLD-C 010 form) Answer to be filed with Affirmative Defenses: 07/13/20
  

So borrowing SOL defense not applicable

When I lookup my case on the court website, it states "Jury Trial is scheduled for my X/XX date".  Will this really be a jury trial or ruled by a judge?  

I want to file a Motion in Limine and have read other posts here where the ruling judge said MIL can only be used for jury trials, so I want to be sure I can use the MIL vs another motion.

I figure your in Superior Court of Orange County

reading link below and what has been filed and what fees paid  you should be able to answer your question as to what trial your are going to have. 

 https://www.occourts.org/self-help/civil/beforetrial.html

 

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1) Consolidation may occur where two or more parties have cases which should be united because they contain identical or similar issues or in such other circumstances as justice requires. (2) Joinder may occur where one person has two or more petitions pending and they are united for consideration.
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2 hours ago, shadow99 said:

I read somewhere on here that if a JDB combines accounts and sues you, and 1 account has an arbitration clause and 1 does not, that you can move to take the entire suit to arbitration.  Anyone else remember that?

I am sure defendant can do that, but in Virginia it may not work if plaintiff attorney is smart. They can file a non-suit  and refile it as two cases. However, if you file a counterclaim before the MTC they can't. 

https://www.virginiabusinesslitigationlawyer.com/the-right-to-nonsuit-in-virgin/

On the other hand if the SOL has passed during the case and they try to refile separately to avoid the MTC then the SOL applies as claims are different. 

https://www.beankinney.com/what-is-a-nonsuit-and-why-they-now-scare-plaintiffs-lawyers/

 

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22 hours ago, nobk4me said:

Is this two accounts, from Citi and Cap One, that Midland bought and has combined into one lawsuit?  Could you break down the amounts, in ballpark figures, for each?  Like, $x for Citi, and $y for Cap One.

Citi $15,779.00 & Cap One $11,092.00

For Citi, you should be able to use arbitration.  Not for the Cap One account, unless it was opened before 2010.  Cap One removed arb from their contracts after that, if I recall correctly.

I was reading another post on arbitration in CA and she said you have to file within 30 days; however, I found this on the courts website and it says I can request arbitration at any time.

Am I understanding this correctly, it's not to late to file ARB? 

 

 

Citi $15,779.00 & Cap One $11,092.00

 

I was reading another post on arbitration  (she stated: You must file your answer and/or Motion to Compel Arbitration with the court before your deadline & It is imperative that when you file an answer, you mention arbitration as a defense.  In some states, if you do not raise arbitration as part of the answer, the court can rule that you waived your right to arbitration.)

I also found this document (below) on the courts website and it states I can request arbitration at any time.

 

Am I understanding this correctly, can I still file the motion to compel arbitration?  

One problem is that I did not request arbitration on my answer so maybe I don't qualify?  I did use this as one of my affirmative defenses: If allowed by this court the defendant reserves the right to plead other affirmative defenses that may become available at a later time.

 

Here is the post I was referring to:  

 

 

Arbitration.jpg

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20 hours ago, Bulldoger said:

I figure your in Superior Court of Orange County

reading link below and what has been filed and what fees paid  you should be able to answer your question as to what trial your are going to have. 

 https://www.occourts.org/self-help/civil/beforetrial.html

 

Yes, you are correct.  Thanks for the link, I found that I am required to pay a $150 jury fee, due on or before CMC &  paid by person requesting jury fee. 

I just checked the court website again and there were 2 supporting documents under registrar of actions for the jury trial: 

JURY TRIAL SCHEDULED FOR XX/XX/2022 AT 09:00:00 AM IN XXX AT CENTRAL JUSTICE CENTER. 07/28/2020 2 pages

 

Does this mean it is a jury trial?

 

 

 

jury 1.jpg

jury 2.jpg

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9 hours ago, pathfinder said:

Does this mean it is a jury trial?

Yes if you pay your fee on time and don't file a motion to compel arbitration. 

here is my opinion I am not an attorney. The way I see it you have a plan on how to win in jury trial. Requesting witness of affidavit to physically appear for cross examining. 

If she doesn't appear you win as the bill of sales are thrown out.   If she does appear (chance is high as who in Minnesota would turn down a trip to California) you can cross examine and show she doesn't have any personal knowledge how the records at Capital-one and Citibank  are keep unless she has worked at both Capital-one and Citibank I don't see she can. 

if you file for arbitration $26,871 plus court cost is lots of money and I can see MCM paying all the AAA/JAMS fees for what MCM stand to collect. Witnesses are over Zoom or telephone so very small chance witness will not appear.  

Why are you going for Jury Trial?  As far as I know (not much of California Law) a bench trial you can still request witnesses. The Judge is more wiser than a person off the street and knows and will follow the law.  A jury trial is a roll of the dice no telling what you get.  Just my two cents.  

 

 

 

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  • 1 month later...

I just came back from court and won with a full dismissal with prejudice. 

I believe Midland dropped the ball in my case but who knows, seems like many have had an experience similar to mine w regards to Midland.  What I thought was odd on my case was there was no discovery on JDB's part even though they did respond to my B.O.P.  They also did an affidavit in lieu of testimony for a Midland employee that was in MN but would accept subpoena 21 days before court in San Diego.  When I went to serve the witness (I gave them 14 days notice), the receptionist said she worked there but in the MN office.  I asked if I she could accept the subpoena on her behalf and she said no.  I left it there anyways.  That was my first clue that something was amiss.  I left San Diego thinking, no one is fighting these collection lawsuits because if people were, they wouldn't have had a witness that would not respond to a subpoena; therefore, they are bluffing w the witness (Even if the witness did show up, I was ready to blast them since they are an employee of JDB & not original creditor(s)).

When I showed up to court today, for some reason, everything was going thru Zoom.  Last week, I called the court and they said all trials are in person, so I was surprised that no one was there.  They let me into the courtroom, I could see the zoom participants from other cases on the screen the court was using for all the zoom callers.  Anyways, when my case was called, the plaintiff "rent an attorney" showed up on the screen but he was driving.  lol.  I was thinking, is he really going to try this case while driving?  lol.  So the attorney announced who he was and the next thing he says is they are asking for a dismissal with prejudice.

I've read of others here having the same experience with JDB requesting the dismissal at the beginning of the trial.  I did a lot and lot of research only from this site, used templates offered here and was ready to defend myself (and actually win IMO).  Well, turns out I didn't need to do any preparation at all.  But so glad I did because it gave me the confidence that I could really win if we did do a trial.

I want you to know, there came a time when I wanted to quit.  In the beginning, everything was so overwhelming and confusing to learn but if you just read post after post, take notes, things will eventually start to click and make sense.  If I would have quit, I obviously would have lost for sure.  What's funny is my trial was a jury trial, requested by JDB.  Well, I believe they chose that option to create even more anxiety and stress of defending yourself in front of jurors, I believe it was just a scare tactic.

What made me suck it up and not quit was because I thought I probably already lost anyways.  So why not try and fight because I have a ton of upside if I win (plus I was going up against Midland) and the downside is, I probably lost anyways so I truly have nothing to lose except time.

If you are getting sued my Midland, I hope you decide to fight them because for me, they put up no fight at all!

Now it's time for me to send out the MC-010 to get my money back!

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Congratulations!  Good job!

34 minutes ago, pathfinder said:

They also did an affidavit in lieu of testimony for a Midland employee that was in MN but would accept subpoena 21 days before court in San Diego.  When I went to serve the witness (I gave them 14 days notice), the receptionist said she worked there but in the MN office.  I asked if I she could accept the subpoena on her behalf and she said no.  I left it there anyways.  That was my first clue that something was amiss. 


This is one of the rules we always point out to CA limited civil defendants.  Read and follow CCP 98.  The subpoena to the witness is absolutely necessary.  Without that subpoena, the judge will accept the affidavit.  And the witness must be available for service within 150 miles of the courthouse.
 

31 minutes ago, pathfinder said:

Even if the witness did show up, I was ready to blast them since they are an employee of JDB & not original creditor(s)

Don’t get caught up on this.  Many courts have ruled that a witness from the OC is not necessary to authenticate business records.

 

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