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skippy1960

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Everything posted by skippy1960

  1. Your statement is accurate, except the last case they served him in a county he did not live in, complete wrong jurisdiction. He fought the case in that jurisdiction and was able to force dismissal. I was just spit balling and idea, have no clue if it would work. But if they again filed in wrong jurisdiction, could he take the default, get it vacated and dismissed. This would then force them to refile in the correct jurisdiction. In doing so the SOL that is in play in the 30 days according to OP would be in play. As I said I wouldn't do this unless I answered a number of questions to be sure...
  2. John, Been a few years sorry to see you are back. Obviously, you can see your opponent hasn't changed their business model based on the sewer service. Can you share a bit more about the particulars of the service of this case? The reason I am asking is you forced them to dismiss during the last battle. So they know what your plan of attack will be. Now they may not change anything, and you may end up doing the same dance. On the other hand, they may make some large changes in how they attack this time. Examples- 1. They obviously know that you are willing to fight, so they are attempting to get default by what you call sewer service? Last time they served you at your last address known. 2. They may go offensive and file a MSJ at the earliest possible time. This would shift the burden to you to show a "issue of fact in dispute" that needs to be determined by the judge. There is no reason for them to send discovery and jump through all that paperwork, they know how you will answer. They know you will force a witness as you did last time. Motion for Summary Judgement responses are not impossible for a Pro Se to beat back, but they are technical in nature and a lot of work to prepare. Then you are still at the mercy of the court to agree with your opposition to the motion. My point is it would be better to be proactive and prepare for additional battle attacks you can make. What does this mean? I don't know if this would work, others could chime in as I could be wrong on this strategy! If the service of the new suit is clearly illegal or outside the statutory requirements. For example did they "knowingly file in the wrong county/jurisdiction". If so then let them have the default judgement, then go back and get it vacated and dismissed. They will need to refile in the correct jurisdiction, only problem is the SOL will have expired if there is only a month left when they filed this second suit. So give us a little more about the service of the suit just in case the above scenario is valid.
  3. You are filing a Motion, I mentioned previously that the CCP1281.2 uses Petition. The CCP applies to both.
  4. Smitty, Here is a set of files from 2009. Just as the professional lawyers can get in trouble so goes it for us around here. You will need to adjust the facts to fit your actual circumstances. Meaning don't slam you name on these and file them! You need to do some work, but these are full and complete set of filings. You will also need to present as an exhibit your declaration that the Card agreement you intend to submit is the version that should be used. First step is get the circumstance updates done. Then lets see where you are and do some fine tuning.... Redacted Memorandum of Facts v 2.doc Redacted Motion to Compel Arbitration Cap v 2.doc Redacted Notice of Lodgment of Exhibits in Support of Motion to Compel Arbitration Cap.docx Redacted Notice of Motion and Motion to Compel Arbitration Cap .docx Redacted Order to Compel Arbitration Capitol 1.doc Redacted Proposed Order to Compel Arbitration Capitol 1.doc
  5. Happy, Thanks for your continued realism of the situation, in pointing out once again that having a valid defense is a big problem. Really, based on your assistance about 95% of the folks that show up here should sit back and take the default judgment because they have no valid defense. So I will now give you some examples of WHAT THE POINT IS! You are very correct Hope is not a strategy. In the Civil Court system I have yet to find any Civil Procedure or Civil Code that requires either party Plaintiff or Defendant to have valid complaints or valid defenses based on law. If someone wants to sue another person they can, and a defendant can defend a claim if they choose. Now at some point in the process the item you continue to point out may become the down fall of a case. In the meantime any OP who shows up here will get to LEARN about our system of justice. They may gather additional computer skills base on all the filings. A good chance their writing skills will improve. It is possible that they will grow a back bone if they didn't have one. They may find they are going to change their behavior in how they handle there finances. The list could go on and on. That is the point! This board would not need a lot of participants if all we needed to do is find the "VALID DEFENSE" for each person. No Valid Defense sorry no help for you... So you are right Smitty here could stop the fight take his medicine ($20K Judgement). Or, he can put the Plaintiff's attorneys through the paces and make them earn that $20K judgement, by answering legitimate filings allowed with-in the law. This case is still being handle by a Collection Attorney group, and they do make mistakes because of the nature of that law practice. Known as Copy and Paste law by the para-legal group for the 3-9 real attorney's at a given firm, handling 100's of cases at any given time. Finally, what is the real cost for Smitty to fight the case. If he qualified for a fee wavier nothing for the answer, but lets say he doesn't get the fee wavier. Add it up, the answer filed, response to MTD admitted, MTC Arb and filing answer to the MSJ, couple reams of paper, a round of black ink, CMRR/postage. I say he gets all this for under $1000. Happy, you and I have been here a long time, that $1k isn't enough to begin to try to settle with. So what has he really lost if he does lose this case????
  6. Smitty, For the MTC to have any chance of winning you need to make sure you are truly entitled to arbitration via the cardmember agreement. The agreement that your account is governed by is the last agreement in place prior to your default on the account. Meaning if stopped making payments in June of 2013, and a new agreement was presented to all active account holders in January of 2014. Your account would be governed by the agreement previous to June of 2013. You can't go all the way back to 2007 when you opened the account, if there were updates made along the way. In most instances they pulled the Arb clause in 2010, you never really stated when you defaulted on the account only that the suit was filed in December of last year. As previously stated you can still file and go through the process and they may make that mistake we spoke of, and bingo they will have to spend time and money to fix it. Anon is correct on these large dollar accounts, you want to wear them out working on your file, because they may get tired at some point..... Just wanted to make sure you understand what this MTC filing is all about, likely not to win, but to force them to spend time to answer....In this case yes file it with the last agreement that has an arbitration clause. Be sure to read CCP 1281.2 as it has the rules on what needs to be in the Motion. They use the word Petition, this is somewhat interchangeable with Motion.
  7. Smitty, First I must tell you I showed up here with $72K in CC debt over 14 cards. I was sued 4 times, lost the first case against Target. Didn't really know what the hell I was doing, they filed MSJ and we lost. (Wife's account) From that point on I spent hours on this site, learning Civil Procedure and how to write court filings. I must tell you that I used an attorney on the second OC case as the amount was $15K and couldn't afford to chance another loss. I was still working and had saved a war chest of sorts. The attorney won that case and it went to trial! The CA for the other side made a huge error and never legally requested I be present. This meant they had to rely only on their witness, because I never had to take the stand. During that time I had other creditors for small balance accounts that I used the Arbitration Card on and they gave up. In the end I never lost another case and spent $9200 to get rid of all 14 accounts. This was a 3 year experience of hours on the computer, away from the kids and family. I learned that these cases are like playing chess you have to find away to be 3-5 moves ahead of your opponent. By the way they are certified legal professionals. They may not be practicing law at a top firm, but they are still trained lawyers and they do what they do all day long. So don't underestimate your opponent. The good news is they have hundreds of cases they are managing and can or will make mistakes. Just as in my case had I taken the stand we may have lost. Now for your circumstance: I would mount a two pronged offensive. First I would check the MSJ filing it should have a copy of the CC Agreement as an exhibit. See if it has a arbitration clause. It is always best to use their evidence against them when possible. You will need to read the Agreement carefully Cap One got wise and removed the arb clause for a while. Assuming the Arb clause is in the agreement, you should go ahead and file a motion to compel arbitration and stay the current case. You will need to get cracking on this, because you will want to schedule the hearing for this Motion in June prior to the MSJ. If you can win the courts approval that will derail the SJ as it will be stayed until the completion of the arbitration. Next assume you loose the Arb motion you need to start right away on you Opposition the MSJ. You are saying I don't know what I need to file to oppose, right? Every document you received you will have a similar document named the almost the same way. Example: Plaintiff likely filed the following Documents: Plaintiffs <Enter Name>Notice of Motion and Motion for Summary Judgement- Defendants <enter name> Notice of Opposition to Motion for Summary Judgement Plaintiffs <enter name> Motion for Summary Judgement- Defendants <enter name> Opposition to Motion for Summary Judgement Plaintiffs <enter name> Memorandum of Points and Authorities- Defendants Opposition to Plaintiffs Points and Authorities. Hopefully you get the jest of how this will work. You need to start now, because your opposition created the entire 75 or so pages they sent you in less than 2 hours, it could take you 2 hours to just to get a good court style filing set up so your work looks professional. If you still want to move forward then the board will do our best to assist......
  8. Smitty, There was no reason to continue the Discovery motion, they saw your response and in their experience didn't think they would win the motion. They may have even seen your letter regarding arb. The quickest way to derail the arbitration possibility is to make another filing, forcing you to answer, thus a MSJ. By Civil Procedure code 437 a MSJ requires 75 days notice, that is why the hearing is set for July. As I stated earlier you are dealing with an Original Creditor on an account that you say is $20K. Around here there are a number of procedural steps that allow for victories over the JDB and Collection attorneys that can be used to win. In your case these are less useful, and here is why. They don't have to overcome "Standing" to sue, there is no assignment or sale of the account. This is an OC so they have all the records at their finger tips, and I assume there are Exhibits attached to the MSJ filing that show the statements. I am equally certain there is a affidavit or declaration from someone who works for Cap One that talks about those statements. (In a JDB case they rarely have a witness or declaration from the OC, it is some person from the JDB trying to authenticate the statements) The reason they continue is that a $20K judgment is good for 10 years and can be renewed for another 10 years and collects interest every month. You may not have any money today, but who knows, you could tomorrow or a 13 years from now. So for them it is a small investment of time and money to have the right to possibly collect in the future. I am not telling you not to continue to fight, I just want to answer your questions above. You have to have an answer the MSJ filed at least 14 days prior to the hearing date in July, if you decide to continue to fight. Let us know what you decide and then we can discuss what the next steps could be.....
  9. Smitty, First you need to be sure that the Motion to Deem hearing has been removed, you want to confirm this with the court. Next you stated they started "another" MSJ for July. This implies it is a second attempt. Or did they file a first MSJ along with the Motion to Deem Admitted? This is important because answering a Motion for Summary Judgement from an OC is not easy. It is a tremendous amount of paper work, and you have to create in your answer/opposition a "triable issue of fact". In essence the burden of proof moves to the answering party, you. Have you been served the Motion for Summary Judgement?
  10. Not knowing what programs you have on your computer, you might try scanning the documents and saving as a PDF file. Make sure you black out any personal information. PDF is a common file that can typically be viewed on this site and others.
  11. Chill, It is not logical the issues you mention, but you are not dealing with top notch attorneys looking to remedy a civil injustice. Midland and Cach LLC are large Debt Collection corporate entities. This means least amount of cost to gain the most profit possible. Your name appeared on spreadsheet they purchased, and a admin person completed the necessary forms to submit to court, obviously with typo errors. This is because there were 10K accounts to create the forms for. This like a legal assembly line with very little checks and balances on their end. If you don't get that call from the BK group you would be facing a judgement that you would have to unwind....so you are lucky. As others have said if you participate and follow the directions given you have a very good chance of making this go away. You will need to devote the time and effort, but the answers of what to do and when to do are here on this site. As Anon has said find the forms get a General Denial filed and send the BOP right away.
  12. Smitty, First I would make sure I win the first battle in the war, meaning hope the court agrees that the plaintiff was not harmed by your late responses. If you lose this motion the case is over because all the RFA's are considered admitted. This will allow for an easy Summary Judgement filing, or you would have to appeal the motion ruling. So NO I would not be doing any additional filings until this battle is complete. I would also note this case is for $20K which is a big prize for the CA and plaintiff. So the arbitration card, while a good one, is not likely to change the dynamic. Further, Arbitration card is best used very early in the process. Like file the Answer, then MTC Arbitration right away, or better yet file a Petition to Compel Arbitration prior to the answer. Point is you want to limit the use of the courts jurisdiction in the case this way the other side can not claim you waived your right to arbitration. Doesn't mean you can't try even now, but these are the issues you need to weigh in making the decision..... It sounds as though the plaintiff is the Original Creditor, Cap One not a JDB. So this will not be an easy victory for you. They still have to prove all the elements of the case and have a live witness at the trial to win. Best of Luck, I hope Mexico was fun but I would be careful on any future trips there are some misses that can't be fixed....
  13. Chill, So far so good, you are able to follow directions, getting the documents means you will not have a default judgement to unwind. You have 30 days to file an answer to the complaint. You will need to do this or they will file for a default judgement. There is a simple form to complete "General Denial" along with Proof of Service that needs to be filed and sent to the other side. Check your courts website for "Forms" and search for General Denial in the Civil section of forms. You will also need POS-30 form, this will be your proof of service. Next, you really need to remember, think back or consider if this account is yours. I know a lot of things happen in life, but if I had some type of credit card in the last 4 years I would remember spending $1100. Because you mention the first name and more importantly the middle initial not being absolutely correct, they could have the wrong person. If this is really an ID Theft situation, there are steps to take to end the suit quite quickly. But you have to be sure, because this route requires you completing a form and swearing under oath that it is. If later it turns out to be your account then and even bigger mess, could become criminal. Best of Luck
  14. Harry, You being a long time poster know that taking a "Student Loan" is the worst thing an 18yo can or should do. You asked for pragmatism. A quick google search says the number is between $5 and $20K for Cosmo school, YIKES! I have 3 daughters my middle was very head strong and believed she knew what she wanted at 18. Began online college via loans, accomplished a psychology degree at a cost of $37K. She is now 29, married then divorced has a son. Is currently with the right guy and pregnant with second child. They just or should I say he just bought the house they live in. They want to marry, but once they do deferment of loan payments disappears and the Sallie Mae becomes their new friend on a monthly basis.... One of my biggest regrets is I didn't understand the Debt/Loan game better. I supported her decision when she began due to lack of knowledge, hell I was proud of her. Today I know that was the worse decision and weakest parenting I did. Certainly my experience could be in actual practice very different from what happens with your daughter, but statistically speaking odds are against it. What would be my advice today to one of my kids? My youngest is a good example. Graduated high school wasn't sure what she wanted to do. Worked a few odd jobs, then got on as an admin assistant for a criminal defense attorney. Did well they paid for her para-legal school. She married her high school sweet heart at age 25. He is becoming a nurse via working as an Emergency Room tech, starts nursing school in the fall, paid for in part by the hospital. The rest being cash flowed, via savings they have made. Two kids very different outcomes. What was the difference? When I arrived at the CIC and was trying to eliminate $72K in credit card debt, I used my daughters para-legal skills in the early going. It helped me learn formatting of my filings and how the Clerks office worked. But during this time I would share with her about the debt mistakes we had made. This transparency of the financial mess we had created had a big impression, obviously it ended my marriage eventually. In the end of the day the 18yo can do what they want and you can only share your experiences and insights. Best of Luck on what ever guidance you decide to give.
  15. Robb, Clyde may disagree with premise of what I am saying, but Clyde is correct in that there is no "HER" portion. When a claim is filed and two different parties are named, they are equally liable for the full amount of the debt. Meaning the Plaintiff doesn't care which Defendant pays the debt or which defendant they extract the money from once they receive a judgement. Point being you will be negotiating against the entire amount of the claim against your wife and father in law. This is why most posters have eluded to your wife claiming identify theft and naming her father and stepmother as the parties who used her identity. I wouldn't expect them to settle for a big discount on this one. Medical debt generally is easy to prove one received the services and your wife has in effect guaranteed payment visa vie being added to the account. Getting a big discount on these requires you have some "Leverage" against the other side. Currently you have not posted anything that the other side has done wrong, equals no leverage. The best tool you have is offering a LUMP SUM payment. Business are about generating income if you can offer a lump sum payment to make it go away they might bite. I would start at 50% and be prepared to pay as much as 75% to 80%. I would try to get an email address from the other side, that you can use. Better than the phone but quicker than snail mail. Also once your wife gets the an email contact, you can take over the negotiation on her behalf. I know this is a tough nut to swallow, but as I said family dynamics aren't always black and white. They are grey until the party getting pooped on has had enough. Your beautiful bride is just seeing but not ready. She will at some point....
  16. Robb, You have received a lot of sound advice on what the "Right" thing to do is. Certainly, your wife is entitle to use courts to mount any defense she can muster against the complaint filed against her. You have admitted that in the end you will paying for this debt, assuming your wife loses in court. This being your first child with your wife, you may have others, but her first child. One calculation you have not measured is the time/frustration/emotional "amount" this is and will continue to be on your family. My advice would be to call and settle for the best financial number you can get. Make it go away now, no need to drag the memory of the issue for the next 3, 6 or 9 months. There is no upside to fighting to the end. If you lose your wife will have a judgement placed on her credit file. Then you will pay? There is a lot of blame that can be placed in the current family dynamics. At the present time "the love of your life" is not able or willing to change those dynamics. I have learned that change is incremental and usually in small steps. If you are going to be the Hero and make this go away, no need to wait till the last minute. Quit trying to spend 4 hours of your time learning how and what a rule 41 filing is. Pay the money and enjoy the upcoming arrival of the new bundle of joy that is on the way!!!!
  17. USC is dead on with this one. Frankly, you should look at this as a gift. You were given an easy win in court with little to no effort on a sum of money you likely owed. Now you are being asked to pay an additional 10 or 15 percent of the debt on your taxes. Had the creditor offered you a 10 or 15 percent payment to remove the debt most would just pay to make it go away versus dealing with the courts. So look at the glass half full instead of half empty!
  18. First is correct in his assessment of the direction you should take. I have a 2009 Agreement from HSBC and the wording was changed. to the following: "This arbitration provision shall apply to any Claim (defined below) by or against us, or you or any Covered Persons (defined below)." The ambiguity or the one-sidedness of the 2006 language was likely challenged along the way, and thus changed and defined more clearly....
  19. Best to work or think this through in the other direction.... The owner of the car, who has the title to the car can have the car repo'd at anytime. You mention a lien which means someone other than you has title to the vehicle, and thus can exercise their rights at anytime. Said another way while you may have avoided paying for all this time and the lien holder missed the opportunity to sue you in court for the money. What they don't lose is the right to the lien. You would have been in the same boat if you ever tried to sell the vehicle, you never had clear title, because of the lien.....
  20. When you answer their Discovery be sure to use a Proof of Service, as some CA's have been known to say they never received your answers....
  21. John, These cases aren't won in this phase of litigation, i.e. the BOP and Discovery phase. My experience is even when the other sides answer is weak or less than should be better to move on. You sent a meet and confer, letting them know it was deficient, they have called your bluff. You can spend time and money filing a motion, which you will lose. So answer to Q1 is they have sent you a few statements? Nice to have, examine the statements. What do you see on them? Are there payments that were made, any charges or do they just have balances and interest charges? Do they show a last payment outside the SOL, by chance? If there are payments, how will they prove you made them based simply on the statement. Finally, statements or only good evidence once they have been authenticated by a custodian or records, or a witness. At this point they are just documents purported to be statements of an account that happen to have your name and address on them.... Q2 Answer: As far as objecting just send the answers as written. Discovery is about attempting to maneuver the adversary into a position they don't want to be in, by forcing them to admit or supply something that hurts their case. Both sides will try to be as vague and give as little information as possible, just as you answered them. Since they don't want to give you the Credit Card Agreement and Bill of Sale in the BOP request, why not request them in a Request for Production of Documents. At some point these documents have to appear for them to win, so send a discovery request. That would be my next step. Once I received these then I would send a few Request for Admissions...
  22. Yes you should send them discovery. It should be very targeted and encompass information you received from the BOP, if possible. Also you should work with only 1 thread. You had a duplicate post, so pick one and stay with that thread. Much easier for us to follow along...
  23. Also, you may want to change your location from Modesto to California. A little broader geography is better. Most of the time it is no big deal, but you never know when the other side might be lurking around the web....
  24. John, Here are the responses to the other two discovery requests. It appears you included a couple of affirmative defenses versus a straight general denial. They will not likely make a big deal about you not providing any information about the defenses. If they do, it will be via a Meet and Confer letter, so you will have a chance to supplement any response. I would not worry about the information from the BOP in regards to these answers. They know they supplied that, they are looking for you to send them a stack of cancel checks from previous payments to help them make their case. Just make sure you update these with your information and be sure to change the Bank information for each document. Finally, be sure the answers to the RFA's is returned to them CMRR with in 30 days. Don't want to miss that deadline they can motion for deemed admitted after 30 days and your case is done you will lose. Responses to Demand for Request for Admissions .doc Response to Demand for Production of Docments .docx
  25. John, Below are the answers that you can use for this set of Interrogatories. The one good thing about most Collection Attorneys is they practice law via cut and paste. Meaning they just change the names and original creditor information and send to us defendants. I helped another with these same requests late last year and saved the answers. You will need to change the Bank from US Bank to GE Bank, but from there the answers should stand. Others may have better or additional answers, so you can change these if you receive additional information. Note in the answer you are not required to include the question. Finally, I have the Request for Admissions and Request for Production of Documents. Assuming the questions are the same, and they likely are, I have similar documents. Response to Demand for Interrogatories .docx
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