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lthrwing

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Everything posted by lthrwing

  1. okay, so here's whats happened since my last post.... it got real close to the end of the 30 days. I started a new job which took me out of town. I received a reply to my Bill of Particulars (BOP) (literally in my mailbox about 3 days before the end of the 30 days) which was a book sized reply of every correspondence and bill that was exchanged between me and the original creditor CapitalOne since day one of my contract with them. I was unable to make it to the Court to submit my General Denial and Proof of Delivery because i was out of town. I was unable to find someone who would go to the Court for me to submit the paper work. I searched online and on the Courts Website and found that they would accept the Forms electronically through specific websites BUT it was going to cost around 400.00 dollars. After deep discussion with my wife and a very wonderful sister, I decided to contact the attorney and make a deal and my sister would supply the funds which I could then pay back to her rather than portfolio and the attorney. The deal was that Portfolio/attorney would send me a letter stating all debt had been paid in full and that all legal actions have been cancelled and then once I have the letter a one time payment for 1600.00 rather than the 1900.00 dollar amount would be sent to Portfolio/attorney. So, the issue has been resolved. Unfortunately, that leaves this Post hanging because it hasn't ended the way I originally thought it was going to. So, is there a Guru in the house that can speculate and explain what would have happened had I been able to submit the General Denial/Proof of Delivery to the Court House and what would have most likely happened from that point forward through the Court Room and finally to the end where the Defendant and the Court get to tell Portfolio/attorneys to go pound sand?! Or, is there another Defendant out there who can pick this Post up from where I'm leaving off so we can have a complete process to the end??? Thank you BIG TIME to all you Guru's who donated their expertise and time to this Post! You guy's are saving the Defendants of the world!!
  2. Still waiting to hear back from the Plaintiff's Attorney and for it to get closer to the 30 day mark to file the General Denial and the accompanying Proof of Service (POS - signed). Will get back as soon as I hear something! Thanks again everyone!
  3. Thanks JohnDubar! Actually we're in the same boat... I'm learning as my case is going on thanks to the experts on this site and doing my own research on the side. I'm putting this Post together because when I initially started out, the info was there and available but it seemed really scattered around and this made things difficult for me to piece it all together and get started addressing the Summons and Complaint. To answer your question, my thought is get the stuff out ASAP before the end of the 30 day mark... but, I'm not the expert... best to put the question to the Board Experts and hope one of them can give you answer soon.
  4. So, the list of steps look like this so far; 1. Was served at home with the Plaintiff's, Portfolio Recovery, Summons and Complaint. 2. Noted that the Summons mentions the Amount of Time I have to respond. 3. Noted the Complaint mentions Limited Civil and the Amount I'm being sued for. 4. Noted the Summons and Complaint packet is divided into several parts; 1) the Summons. 2) the Complaint. 3) the Exibit. 4) the Statement of Location/Venue. 5) the Civil Case Cover Letter. 6) the Alternative Dispute Resolution (ADR) Info Package. 5. Thoroughly read and researched every page of the Summons and Complaint. 6. Due to this wonderful website and the graciousness and expertise of Poster calawyer, it was brought to attention that my Summons and Complaint doesn't contain a Verification Form/Document and is a Limited Civil Case and is a case seeking more than $1,000.00 but less than $25,000.00 and the Plaintiff, Portfolio Recovery, is not a third party collecting a debt for someone else but is the proclaimed owner... which means I am able to respond to the Summons and Complaint using a Demand for Bill of Particulars (BOP) Code of Civil Procedure Section 454 (thanks Anon Amos) along with a Proof of Service (POS unsigned) followed soon after sometime near the end of the 30 days with a General Denial Form (thanks calawyer) along with a Proof of Service (POS) (Thank you RyanEx!) (Links supplied in above Posts). 7. Filled out the Bill of Particulars (BOP) (see example and link above because I couldn’t find a suitable version on the net ready to go) and a Proof of Service (POS)(link above). Make a copy of the Bill of Particulars and the Proof of Service. Mail the original Bill of Particulars along with the original Proof of Service (POS is unsigned) First Class Mail Certified Mail Return Receipt Requested (thanks RyanEx). The Bill of Particulars and the Proof of Service don’t need to be filed with the Courts (thanks Sadinca). Keep the copies for your records. Now wait. 8. Wait to hear back from Plaintiff’s Lawyer. Not exactly sure what the Plaintiff's Lawyer is going to do about the Bill of Particulars at this point but when I find out I'll update this Post. Until then, here's what the plan is so far... Wait until it gets closer to the end of the 30 days then continue with the following: Obtained the General Denial (link thanks to calawyer) (http://www.courts.ca.gov/documents/pld050.pdf and in above Posts) and filled out using the examples supplied by Sadinca as follows (much appreciated!): -On the General Denial, in the top left section it states ATTORNEY OR PARTY WITHOUT ATTORNEY and asks for name, address, email and so on. Is this where I put the Plaintiff's Attorney info? Here, you’d put your name and address, and next to “attorney for” you’d type “Pro se” to indicate that you are a party without attorney. -Below that is states SUPERIOR COURT OF CALIFORNIA , COUNTY OF and asks for address and branch. The Court involved in my case is the Superior Court of California, County of Orange, Central Justice Center, Civil Division. What do I need to put in the Branch section? On here, it will be SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE, The address, which is 700 Civic Center Drive, And next to Branch: Central Justice Center. -Beneath that is the Plaintiff Section where I assume the Plaintiff's Name is entered. Portfolio Recovery Associates. -Beneath that is the Defendant Section where again I assume my name is entered. Your name. -To the right of that is the Case Number section where I assume I enter the case number. Yes. -Beneath all that is a section describing reasons why I can or can't submit a General Denial. -Beneath that is Number 1 which asks for the Defendants Name where I assume I put my name. Yes. -Beneath that is Number 2 Check Box which states DEFENDANT STATES FOLLOWING FACTS AS SEPERATE AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT. Do I check this box and if so what do I need to write? You may use the Statute of Limitations if the alleged debt is close to the 4 year limit. The statement you posted shows a payment on 2014, so SOL is not even near. -Beneath that I date and print and sign my name. Yes. 9. Obtained and Filled out the Proof of Service (POS) (thanks RyanEx for the link POS-030 and in above Posts), pretty self-explanatory plus it contains an instruction sheet. DO NOT SIGN THE POS! 10. Here's what to do with the General Denial and Proof of Service once they're filled out... (thanks RyanEx!); Make a copy of each (end up with the original General Denial and the original Unsigned POS plus a copy of both) and give the COPIES to the person who will serve it (mail it) for you (non-relative and not associated to the case, must be an adult). They will mail the General Denial and UNSIGNED POS copies first class mail to the Plaintiff's Attorney. Once the copies are mailed, have the same person sign the original Proof of Service (POS). Then take the originals (the General Denial and Signed Proof of Delivery) to the courthouse and get them time stamped, then have them make copies, then have the Court file the stamped originals and keep the copies for your records. There most likely is a fee the Court will ask for the filing, if you are unable to afford the fee, ask the Courts for a fee waiver. 11.... More to come!
  5. Hi everyone! Being a non-legaleze and first time sueeeeee..... I posted a Bill of Particulars and was hoping one of you might be able to give it a thumbs up or down. Thanks for all the input!
  6. Reposting due to error with board: calawyer said: I get signed proofs of service from big law firms every day. Only once have I had a judge comment (however, in fairness, there is seldom a reason why a judge would look at a proof of service on routine pleadings). However, the procedure RyanEx suggests is the correct one. And, in my opinion, if you are going to do something, you may as well do it right. For the OP: A somewhat long (for me) post I did on BOPs and motions to compel written discovery can be found here: http://www.creditinfocenter.com/community/topic/309078-motions-to-compel-bop-vs-written-discovery-in-cal/?do=findComment&comment=1115890#comment-1115890 One additional reason to send a BOP, even if you don't think you will move to compel, is that it gives you a nice objection when Plaintiff sends YOU a bunch of discovery. See, 1111girl's thread.
  7. Reposting due to error with board: Vpick001 said: 7 minutes ago, RyanEX said: Did the same thing myself. Unrelated, but I see by your avatar you're "1-0 vs JDB", how long did fighting your case take? I understand that it varies from person to person, but I would like to know about how long of a fight I'm in for...
  8. Reposting due to error with board: RyanEX said: 9 minutes ago, Anon Amos said: I always felt the same way as you about this. RyanEX explains it well in his post above. I always sent mine already signed, and put them in the mail myself rather than bothering the person who signed it. It is an area the court doesn't pay much attention to. Did the same thing myself.
  9. Reposting due to error with board: Anon Amos said: 1 hour ago, Vpick001 said: 1.) Why do we send an unsigned POS030 to the plaintiff? I understand that we sign it when filing with the courthouse, I just don't understand what difference it makes whether or not the plaintiff's copy is signed. I always felt the same way as you about this. RyanEX explains it well in his post above. I always sent mine already signed, and put them in the mail myself rather than bothering the person who signed it. It is an area the court doesn't pay much attention to.
  10. Reposting due to error with board: Patz said: For anyone being sued by Portfolio, be aware that in 2015 the CFPB settled with Portfolio for over $25 million for abusive collection practices. Read about it here: http://www.consumerfinance.gov/about-us/newsroom/cfpb-takes-action-against-the-two-largest-debt-buyers-for-using-deceptive-tactics-to-collect-bad-debts/ You should find something in the settlement that can help you in your case. For example, the settlement says Portfolio tries to collect on debts when the sales agreement with the debt seller makes it clear that the debtor records are NOT guaranteed to be accurate. CFPB said Portfolio can't collect on these debts that can't be verified. That would probably apply to any collector.
  11. Reposting due to error with board: RyanEX said: 3 minutes ago, Vpick001 said: Talk about great (terrible?) timing, I just got served for PRA by the same firm, the only difference is that I'm in San Bernardino county. That being the case, I'm in the same boat as you, Ithrwing. I'm going to keep up with this thread and contribute whenever I can. Two questions: 1.) Why do we send an unsigned POS030 to the plaintiff? I understand that we sign it when filing with the courthouse, I just don't understand what difference it makes whether or not the plaintiff's copy is signed. 2.) When sending a BOP, so I also need to send it with a POS030? I would assume not since it's not being filed, but I just want to be sure. 1) It's the proper way to do it (though many have sent a signed POS instead without any issue). Consider what the POS says: that the person performing the service has (already) deposited a sealed envelope with the USPS. How can they sign a POS stating they already deposited a sealed envelope, when that envelope includes that same POS? It's just matter of the order you do things. 2) Yes, send a BOP with a POS. You are requesting something from the plaintiff; even if you are not filing the request, you want to be able to prove that you served it properly. Also, the POS identifies a date of service and the plaintiff needs to time their response according to the date of service. Sending it CMRRR will also prove they received it.
  12. Reposting due to error with board: Vpick001 said: Talk about great (terrible?) timing, I just got served for PRA by the same firm, the only difference is that I'm in San Bernardino county. That being the case, I'm in the same boat as you, Ithrwing. I'm going to keep up with this thread and contribute whenever I can. Two questions: 1.) Why do we send an unsigned POS030 to the plaintiff? I understand that we sign it when filing with the courthouse, I just don't understand what difference it makes whether or not the plaintiff's copy is signed. 2.) When sending a BOP, so I also need to send it with a POS030? I would assume not since it's not being filed, but I just want to be sure.
  13. Here is the Word File as shown in image above. Example DemandBillParticulars for California Mod.doc
  14. Okay, so a Bill of Particulars is what I now need to get working on and send to attorney, here is my example of a Demand for Bill of Particulars (BOP) Code of Civil Procedure Section 454 since I wasn't able to find a good enough example on the Net or a download....... PLEASE REVIEW AND LET ME KNOW IF I SHOULD MAKE ANY CHANGES BEFORE SENDING. Thanks everyone!
  15. Reposting due to error with board: sadinca said: and you do not need to file the Bill of Particulars (BOP). but keep a copy for your records.
  16. Reposting due to error with board: RyanEX said: Bill of Particulars (BOP) first, you can do that right away. Serve it with a Proof of Service (POS), first class mail Certified Mail Return Receipt Requested (CMRRR). The General Denial (GD) you can wait, if you like, until you get closer to the due date (30 days from service of the summons). Also with a Proof of Service (POS), no need to send it Certified Mail Return Receipt Requested (CMRRR). Whenever you serve any item, you'll be serving it upon the plaintiff's attorney(s).
  17. Reposting due to error with board: So in case my question was lost in translation... LoL! .... Regarding the Demand for Bill of Particulars (BOP) which is Code of Civil Procedure Section 454 (thanks Anon Amos), when should I send the Bill of Particulars, should it be mailed or served, if mailed what type of mail, do I send a Proof of Service, do I copy the attorney and file with the Court or just send to the Attorney, and so on?
  18. Reposting due to error with board: So, the list of steps look like this so far; 1. Was served at home with the Plaintiff's, Portfolio Recovery, Summons and Complaint. 2. Noted that the Summons mentions the Amount of Time I have to respond. 3. Noted the Complaint mentions Limited Civil and the Amount I'm being sued for. 4. Noted the Summons and Complaint packet is divided into several parts; 1) the Summons. 2) the Complaint. 3) the Exibit. 4) the Statement of Location/Venue. 5) the Civil Case Cover Letter. 6) the Alternative Dispute Resolution (ADR) Info Package. 5. Thoroughly read and researched every page of the Summons and Complaint. 6. Due to this wonderful website and the graciousness and expertise of Poster calawyer, it was brought to attention that my Summons and Complaint doesn't contain a Verification Form/Document and is a Limited Civil Case and is a case seeking more than $1,000.00 but less than $25,000.00 and the Plaintiff, Portfolio Recovery, is not a third party collecting a debt for someone else but is the proclaimed owner... which means I am able to respond to the Summons and Complaint using a General Denial Form (thanks calawyer) along with a Proof of Service (POS) (Thank you RyanEx!) (Links supplied in above Posts). 7. obtained the General Denial (link thanks to calawyer) (http://www.courts.ca.gov/documents/pld050.pdf) and filled out using the examples supplied by Sadinca as follows (much appreciated!): -On the General Denial, in the top left section it states ATTORNEY OR PARTY WITHOUT ATTORNEY and asks for name, address, email and so on. Is this where I put the Plaintiff's Attorney info? Here, you’d put your name and address, and next to “attorney for” you’d type “Pro se” to indicate that you are a party without attorney. -Below that is states SUPERIOR COURT OF CALIFORNIA , COUNTY OF and asks for address and branch. The Court involved in my case is the Superior Court of California, County of Orange, Central Justice Center, Civil Division. What do I need to put in the Branch section? On here, it will be SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE, The address, which is 700 Civic Center Drive, And next to Branch: Central Justice Center. -Beneath that is the Plaintiff Section where I assume the Plaintiff's Name is entered. Portfolio Recovery Associates. -Beneath that is the Defendant Section where again I assume my name is entered. Your name. -To the right of that is the Case Number section where I assume I enter the case number. Yes. -Beneath all that is a section describing reasons why I can or can't submit a General Denial. -Beneath that is Number 1 which asks for the Defendants Name where I assume I put my name. Yes. -Beneath that is Number 2 Check Box which states DEFENDANT STATES FOLLOWING FACTS AS SEPERATE AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT. Do I check this box and if so what do I need to write? You may use the Statute of Limitations if the alleged debt is close to the 4 year limit. The statement you posted shows a payment on 2014, so SOL is not even near. -Beneath that I date and print and sign my name. Yes. 8. Obtained and Filled out the Proof of Service (POS) (thanks RyanEx for the link POS-030), pretty self explanatory plus it contains an instruction sheet. DO NOT SIGN THE POS! **** Thanks to Anon Amos who suggested the following: "Also, research sending a demand for BOP (bill of particulars), it's a simple document that you can send right away and then file and serve your general denial closer to the deadline, to buy some time." **** I researched a bit and found that a Bill of Particulars (BOP) is allowed in California and when pertaining to a credit card collections case, requests that the Plaintiff supply the following; •Agreement and/or contract of the relevant account. •Proof the Plaintiff owns the account. •List of items for which payment is being sought. •List of dates associated with each item, transaction or service. •List of charges per item, transaction or service. •Means by which the plaintiff determined amount owed and for what. **** I also found the following info regarding the BOP; "A bill of particulars requests details on everything the Plaintiff states is the meat of the case. This prevents surprises, enabling the Defendant to prepare the strongest defense possible. A bill of particulars is also in the best interest of the judicial process overall: The sooner a Plaintiff and Defendant are on the same page about the exact nature of the lawsuit, the more efficiently and effectively the case can move through the system." **** And also.... "A demand for a bill of particulars in California is authorized by Code of Civil Procedure section 454 and is an excellent tool for forcing a plaintiff to itemize the total sum upon which the complaint is based. A demand for a bill of particulars is a procedure outside the Discovery Act, but it serves a discovery purpose in that it allows defendants who have been sued generally on an account (certain actions in contract or quasi-contract) to force plaintiff to itemize the account on which the complaint is based. A plaintiff who sues on an account is not required to set forth in the complaint the items of account. See Code of Civil Procedure § 454. Therefore, it is not appropriate for the defendant to demur to the complaint on the ground of uncertainty. However, on written demand by the defendant, the plaintiff is required to furnish a copy of the account on which the complaint is based or be precluded from giving evidence thereof. See Code of Civil Procedure § 454. This procedure dates back to early common law. When plaintiff sued on a common count, the pleadings gave no specifics as to the nature of the claim such as whether it was on a contract, quasi-contract, etc. Therefore, courts allowed a "demand for bill of particulars" to enable defendant to discover what was being claimed and to prepare for trial. Although interrogatories and depositions can now be used for the same purpose, the bill of particulars remains an alternative procedure and it has certain advantages, as well. It is far easier and less costly to send out a simple demand for bill of particulars than it is to draft interrogatories or to prepare for and take depositions. Answers to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive in that contradictory evidence is also admissible. On the other hand, a bill of particulars is conclusive as to the items and amounts claimed, meaning that no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars. And since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act. Thus it is particularly useful in limited civil litigation where parties are strictly limited to a total of 35 discovery requests pursuant to Code of Civil Procedure § 94. A demand for a bill of particulars appears to be a little used procedure today. Yet it remains a viable tool for the defendant in an action on an account. Kaneko Ford Design v. Citipark, Inc., (1988) 202 Cal. App. 3d 1220, 1225, (reciting fact that demand was made and complied with.) One possible reason for its declining use is that some attorneys simply fail to recognize that, in the appropriate action, a demand for a bill of particulars can be very useful in forcing plaintiff to provide all of the documentation supporting their claim This is particularly true when plaintiff is an assignee of a finance or credit card company such as a debt buyer that may not have all of the documentation. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars. The demand for a bill of particulars must be in writing, and the bill of particulars must be delivered to the requesting party within 10 days, 15 days if the demand for a bill of particulars is served by mail. And if the original complaint or cross-complaint was verified the bill of particulars must also be verified. If, after furnishing the itemization, plaintiff finds that it was incomplete or incorrect, plaintiff must seek leave of court by filing a noticed motion to amend the bill of particulars just as he or she would to amend a pleading. The bill of particulars furnished by the plaintiff is treated as an "amplification" of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. See Baroni v. Musick (1934) 3 Cal. App. 2d 419, 421. Apart from actions on a book account, demands for a bill of particulars arise most often in the context of common counts. Kawasho Internat., U.S.A. Inc. v. Lakewood Pipe Service, Inc., (1983) 152 Cal. App. 3d 785, 790. Common counts include (1) money had and received; (2) money lent or paid; (3) services and material; (4) goods sold and delivered, and (5) quantum meruit. However even though the code authorizes a demand for a bill of particulars in an action "on an account," it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677. An account stated is a new agreement by the parties which supersedes the original contract and account. Jones v. Wilton, (1938) 10 Cal. 2d 493, 498. Any action on it is therefore based on only the final balance agreed on by the parties and not on the original individual items of account. Hallford v. Baird, (1938) 27 Cal. App. 2d 384, 398. Therefore, itemization of the account is not possible. If the information furnished is deemed too general or incomplete, the defendant may make a noticed motion for a further bill of particulars. Burton v. Santa Barbara Nat'l Bank (1966) 247 Cal.App. 2d 427, 433. If plaintiff delivers no bill of particulars, the court may bar plaintiff from introducing evidence at trial in support of the account claimed if the defendant makes a motion." **** So, a Bill of Particulars sounds like a really good idea to fill out and send to the Plaintiff's Attorney BEFORE sending the General Denial and Proof of Service to the Plaintiff's Attorney. Is my assumption and Anon Amos's suggestion valid?? 9. (the following is pending verification that submitting a Bill of Particulars (BOP) is a good idea to submit before the General Denial and Proof of Service) Here's what to do with the General Denial and Proof of Service once they're filled out... THIS IS THE 1ST REPLY TO SUMMONS AND COMPLAINT PART... (thanks RyanEx!); Make a copy of each (end up with the original General Denial and the original Unsigned POS plus a copy of both) and give the COPIES to the person who will serve it (mail it) for you (non-relative and not associated to the case, must be an adult). They will mail the General Denial and UNSIGNED POS first class mail to the Plaintiff's Attorney. Once the copies are mailed, have the same person sign the original Proof of Service. Then take the originals (the General Denial and Signed Proof of Delivery) to the courthouse and get them time stamped, then have them make copies, then file the stamped originals and keep the copies for your records. 10.... More to come!
  19. Okay, so from reading other post, apparently there was an issue and it now seems fixed... at least it appears to be since my posts are sticking now.... Since I have what the other posters posted to my topic in my email, I'm going to type what they posted so it's included.
  20. I'm experiencing the same as Jking57. My topic is not only missing my Posts over the last couple days but also missing posts from other members. I received emails informing me that the other members had made posts to my topic but when i click the link to view the posts i get a message that the items can't be located with error code 2s136/c. I log into the site and check my topic and sure enough the posts from members and myself aren't there.
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