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stanislavbr

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  1. How do you know that Citibank sold your debt to a debt collector? In my situation they filed a lawsuit against me so I went to the courthouse and got a copy of the sale of the debt and wrote a letter stating that Citibank has filed a fraudulent 1099-C. I attached the letter and copy of the sale from Citi to debt collector to my TAX PAPERS as I was filing my return and never heard from the IRS since.
  2. How will they get social security number and date of birth? Only from what they have on file? Who is to say it is correct? I'm just looking at every angle for a relative. Went to trial. Motion in limine denied regarding ccp 98 and judge just immediately entered judgment based on ccp 98 evidence. The thing is the evidence even has the wrong name. It isn't just a title of lawsuit that is wrong. Even statements are wrong.
  3. So plaintiff filed a complaint naming John Doe as defendant but your name is John Dow. You notify them they have the wrong person and they ignore it. Eventually you go to trial and lose. Would the judgment be in only John Doe? No other name was in the complaint. Would they be able to change it afterwards to John Dow?
  4. Sadly it wasn't my case. I don't know what exactly happened. That is why I'm here.
  5. So I'm wondering what to do next. Judge denied the motion in limine regarding the CCP 98. Not even exactly sure why he denied it. I filed the motion 5 days before trial. Subpoena was done 9 days before trial. Declaration only followed the within 150 miles rule by using somebody else's address and not the affiants. Motion used the Target v Rocha case and pretty much everything I found with the help of the wonderful posters here. Can you just file an appeal based on the motion being denied and the judge not following the CCP 98 rules? Any question or comments would be helpful.
  6. Send them a CCP 96 request. http://www.courts.ca.gov/documents/disc015.pdf Send that soon you don't have much time. edit: HAHA ok I'm now confused. Are you in Virginia? Cause CCP stands for California Civil Procedure? edit2: Hmmm your location says California so I guess so. I don't see how a Virginia lawyer would be able to even sue you. Pretty sure you have to be a member of the California Bar or whatever is required to be a lawyer in this state.
  7. You would get more than $1,000. You should get $1k for FDCPA + $1k for Rosenthall from CACH and another $1k for FDCPA +$1k Rosenthall from Neuheisall if the lawyer does it correctly.
  8. This is pretty much exactly what happened to me. The 3 people who work their had no idea who I was talking about. I took a geotagged photo showing the Suite number and name of the business below it. With a response like that I really don't think a judge can say much. Also I didn't have time cause I needed to help draft the motion for them which was due a few days later.
  9. I attempted to serve the subpoena myself but it isn't for my case.
  10. Why must they attempt twice? I attempted to serve a subpoena and the people at the location said they don't know anybody by that name who works or lives their. I don't see a point in going back again with a response like this from the 3 employees I spoke with.
  11. “The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due.” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)“The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. If the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct as rendered.” (Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.)“An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, ‘ “it becomes a new contract. An action on it is not founded upon the original items, but upon the balance agreed to by the parties. . . .” Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.’ ” (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786–787 [163 Cal.Rptr. 483], internal citations omitted.)“To be an account stated, ‘it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.’ The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account. However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due.” (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752–753 [241 Cal.Rptr. 883], internal citations omitted.)“An account stated need not be submitted by the creditor to the debtor. A statement expressing the debtor’s assent and acknowledging the agreed amount of the debt to the creditor equally establishes an account stated.” (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr. 757], internal citations omitted.)“ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim . . . . Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)“The account stated may be attacked only by proof of ‘fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.’ The defendant ‘will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or invalid.’ ” (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)“An account stated need not cover all the dealings or claims between the parties. There may be a partial settlement and account stated as to some of the transactions.” (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)“In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)“A common count is not a specific cause of action, . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)Here is some help for account stated. Not sure about the last two though. I couldn't find much on cause of action money lent. It is like the most basic cause of action with almost no requirements. The elements of the common count are as stated, money lent by Plaintiff at Defendant's request, plus Defendant's non-payment. I don't even know what to do. I pretty much just said Plaintiff has no evidence to lending me any money and left it at that.
  12. http://www.creditinfocenter.com/community/topic/322480-substituted-servicediligence-timeline-question-in-los-angeles-county/page-2 look at my post on page 2. just copy and paste this onto pleading paper in MS Word or any other similar program. edit to fit your needs. Just find a document online called pleading paper. It is just a document with numbering along the left side double spaced.
  13. Simple solution is either show up by telephone or don't show up at all. You aren't required to show up to a motion unless the judge orders it. Also based on my motion above they need to prove that it was proper not the other way around. Just attach a declaration saying you do not work at or live at the other address they said they served you at.
  14. John doe 1234 address city, CA zip phone # SPECIALLY APPEARING DEFENDANT name, IN PRO PER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF county plaintiff, Plaintiff, vs. defendant, Defendant ) ) ) ) ) ) ) ) ) ) Case No.: case number NOTICE OF SPECIAL MOTION AND MOTION TO QUASH SERVICE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATIONS OF people DATE: TIME: DEPT: TO PLAINTIFF, xxxx, INC. AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on ___________ at ________, or as soon after that as the matter can be heard, in Department _____ of the above-entitled court located at [address], specially appearing defendant, (name) will appear specially and move the Court for an order quashing plaintiff's service of summons and complaint on defendants. This motion is made under Section 418.10 of the Code of Civil Procedure on the grounds that the summons and complaint were not properly served on the defendant in that Defendant, (name) was not personally served or served by any other way allowed under California Law and therefore not valid and should be quashed. This motion will be based on this notice of motion, the memorandum of points and authorities: the Declarations of (name 1), (name 2), and (name 3), the pleadings, documents, records and files in this action, and such oral and documentary evidence as may be presented at the hearing. MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS On (date), a limited civil case was filed by (plaintiff) for an alleged debt owed by the defendant. On (date) a non-service report was filed for this case. On (date) process server (lying pos) filed a proof of service of summons stating he personally served the Defendant. Defendant contends that because the Plaintiff did not follow the proper California Code of Civil Procedure the service of Summons was improper and the Court must quash the service. II. Legal Argument A. THE SERVICE OF THE SUMMONS AND COMPLAINT IS NOT VALID AND SHOULD BE QUASHED Code of Civil Procedure § 418.10 states in part: “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her”. The main grounds used are that the service on the defendant was defective as the Court does not acquire jurisdiction over a defendant unless proper service of the summons and complaint has been made. This is true even though the defendant may be a resident of California. Code of Civil Procedure § 415.10 states in part: A summons may be served by personal delivery of a copy of the summons and of the complaint to the person to be served. Service of a summons in this manner is deemed complete at the time of such delivery. The date upon which personal delivery is made shall be entered on or affixed to the face of the copy of the summons at the time of its delivery. The Declaration of the Defendant states he was never personally served by process server (lying pos). Code of Civil Procedure § 415.20( states in part: If a copy of the summons and of the complaint cannot with reasonable diligence be personally delivered to the person to be served as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and of the complaint at such person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served at the place where a copy of the summons and of the complaint were left. The Declarations from (name 1) and (name 2) state they were never served papers on behalf of the Defendant. B. THE PLAINTIFF HAS THE BURDEN OF SHOWING THAT THE SERVICE OF THE SUMMONS AND COMPLAINT ON DEFENDANT IS VALID Case law is clear that once a defendant files a motion to quash service that the plaintiff has the burden of proving that the service was valid. Once a defendant files a motion to quash the burden is on the plaintiff to prove by a preponderance of the evidence the validity of the service and the court's jurisdiction over the defendant. Bolkiah v. Superior Court (1999) 74 Cal.App.4th 984, 991. And a defendant is under no duty to respond to a defectively served summons and may stand mute until a plaintiff makes a showing of the validity of the service to the satisfaction of the court. Taylor-Rush v. Multitech Corp. (1990) 217 Cal.App.3d 103, 111. Thus, Plaintiff now has the burden of showing that the service of the summons and complaint on the Defendant (name) is valid. III. CONCLUSION Based on the above, it is requested that defendant's motion to quash service of the summons and complaint be granted. Have fun with this. edit: guess i'm a little late with this but hope it can help somebody else in California. This worked for me 2 years ago
  15. I wouldn't change anything in the MSJ. You file MSJ, they file opposition to MSJ, and you get to reply to opposition to MSJ. If they don't bring up the amended changes to discovery in their opposition to your MSJ why help by doing it for them. Sit back and wait for opposition and counter it with your reply.
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