racecar

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Everything posted by racecar

  1. Spikey said it best "defend your defenses" Because the junk debt buyer does not like your defenses does not mean they are insufficient as a matter of law or in fact. I'm sure most of these hearings go unopposed by defendants. Stand up Fight back,and have your day in court.
  2. We did lose some posts. Next thing is to send some discovery to the plaintiff.
  3. They will say your defenses suck you say they don't suck and you followed the rules of procedure.
  4. Have you filed your written grounds of defense? Ask the judge to give you an order precluding the plaintiff from introducing any evidence that was requested in the Bill of Particulars. This is called a preclusion order. Then,at trial you object to anything covered by the Bill of particulars that they try to introduce by document or by oral testimony. "Rule 7B:2. Specific Rule for Pleadings in General District Courts. The judge of any General District Court may require the plaintiff to file and serve a written bill of particulars and the defendant to file and serve a written grounds of defense within the periods of time specified in the order so requiring; the failure of either party to comply may be grounds for awarding summary judgment in favor of the adverse party. Upon trial, the judge may exclude evidence as to matters not described in any such pleading."
  5. I would go up an read the New York Law firms blog it has some great stuff to read and they tell how they beat the junk debt buyers cases.
  6. http://www.thelangelfirm.com/Debt-Defense-Blog/2011/June/AMEX-and-Zwicker-Associates-discontinue-case-ami.aspx i would go here and read the information on their site
  7. Set forth in detail each defense which the defendant has to the above-entitles cause of action, and in detail, give the factual basis for each, setting forth dates, places, names and addresses of persons present, or involved in the conversations. Attach hereto copies of all writings. Response: (a) The Plaintiff’s claims are barred by the statute of limitations because to the extent that the Defendant may have defaulted on the credit card agreement that is the subject of this lawsuit, that default occurred more than 6 years prior to the date the lawsuit was filed. ( b ) The Plaintiff has failed to state and cannot prove a claim on an account, either open,or account stated because the Defendant never received, personally or for the benefit of any other person, any goods, wares or merchandise, personal services, labor, or labor and materials from the Plaintiff or its assignor(s). ( c ) The Plaintiff cannot prove a claim for breach of contract because it does not have evidence of the offer, acceptance and consideration given for the original contract between the Defendant and the card issuer and any amendments to that contract. (d) The defendant denies owing any money to the plaintiff. (e) The defendant has never had a contract with the plaintiff. (f) The defendant states there is an agreement to arbitrate in citi banks credit agreement.
  8. EXAMPLE DEFENDANT'S RESPONSES TO PLAINTIFF’S REQUEST FOR ADMISSIONS To: American Express Centurion Bank, through its attorney, Zwicker & Associates, 299 Broadway, New York, NY 10007 The Defendant makes the following response to the plaintiff's Requests for Admissions 1. Admit or Deny that you requested American Express to open a credit card account on your behalf. Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. 2. Admit or Deny that American Express opened an account. Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. 3. Admit or Deny that since the account was opened, use of the card results in American Express opening a line of credit on your behalf for the amount charged or cash advance requested. Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response. Certificate of Service On December 09, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below: By Certified U.S. Mail, Return Receipt Requested. Zwicker & Associates, 299 Broadway, New York, NY 10007 My name My address my phone
  9. Each question shall be answered separately and fully, and each answer shall be preceded by the question to which it responds. You don't have to use their form you can make your own. Example DEFENDANT'S RESPONSES TO PLAINTIFF’S FIRST SET OF INTERROGATORIES, REQUEST FOR ADMISSIONS To: American Express Centurion Bank, through its attorney, Zwicker & Associates, 299 Broadway, New York, NY 10007 The Defendant makes the following response to the plaintiff's Requests for Admissions and Plaintiff's Interrogatories: Answer to Interrogatory No. 1: 1.State your full name & address: Response: My name my address Answer to Interrogatory No. 2: 2.State the address(es) at which you have resided in the last ten (10) years.Response: my address Answer to Interrogatory No. 3: 3.Did you ever open & maintain and account with the Plaintiff or Plaintiff’s predecessor in interest? Response: Defendant states he has never opened or maintained an account with the Plaintiff or Plaintiff's predecessor in interest. Respectfully Submitted, [YOUR NAME] Defendant states under the penalty of perjury that the Interrogatory answers are true and correct to the best of his knowledge, information, and belief. _______[sIGN HERE]________ [DEFENDANT] Certificate of Service On December 09, 2013, I caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below: By Certified U.S. Mail, Return Receipt Requested. Zwicker & Associates, 299 Broadway, New York, NY 10007 My name My address my phone
  10. Play care it was just an example of how to answer. I made up those facts you would need to put in your own facts.
  11. Don't even think of paying midland funding any money you may owe someone but you don't owe midland.If you settle with midland for less then amount owed 3 months later you will get to meet portfolio recovery and they will want to collect the full amount plus fee's from you. learn how to defend your self by studying the rules of procedure and the rules of the court and learn how to send discovery. http://www.courts.ca.gov/rules.htm http://www.leginfo.ca.gov/cgi-bin/calawquery?codesection=ccp http://california-discovery-law.com/ read thru all the CA cases on CIC you can find by using the search feature on the top right side of the page. PLD-050 General Denial - California Courts you need to answer the plaintiffs complaint denying all the allegations. POS-030 PROOF OF SERVICE BY FIRST ... - California Courts FW-001 Request to Waive Court Fees - California Courts - State http://www.creditinfocenter.com/community/topic/312714-standing-when-dealing-with-jdb/ read this When you win your case you can clean your credit up.
  12. When was last payment or date of default on the account? Never believe the plaintiff's date use your own records. This could apply. Tennessee has a borrowing statute Delaware Code Title 10, Chapter 81, § 8106 establishes a 3 year statute of limitations The plaintiff’s cause of action would be barred in Delaware. The plaintiff’s cause of action would also be barred in Tennessee. 28-1-112. Application of foreign statutes. Where the statute of limitations of another state or government has created a bar to an action upon a cause accruing therein, while the party to be charged was a resident in such state or such government, the bar is equally effectual in this state. [Code 1858, § 2783; Shan., § 4480; Code 1932, § 8607; T.C.A. (orig. ed.), § 28-114.]
  13. Is the complaint verified if it is the answer must be verified complaint is considered verified if, at the end of the complaint, the plaintiff swears under penalty of perjury that everything is true and correct. You would want to deny each and every allegation in paragraphs. use these forms PLD-050 General Denial - California Courts POS-030 PROOF OF SERVICE BY FIRST ... - California CourtsFW-001 Request to Waive Court Fees - California Courts - State
  14. IN THE IN DISTRICT COURT OF KING COUNTY WASHINGTON Rocky Mountain Service BureauPlaintiffVs.jaspaDefendantCivil Case #DEFENDANT’S ANSWER TO PLAINTIFF'S COMPLAINTNow comes the defendant for answer to the complaint and says as follows: 1. Account stated below is assigned to Plaintiff for collection.Response: Paragraph 1 of the Complaint states a legal conclusion for which no answer is required. To the extent that an answer is required, Defendant denies the allegations of Paragraph 1 of the Complaint and leaves plaintiff to its proofs. 2.Plaintiff is a WA LLC duly licensed and has satisfied the bonding requirement of the state of WA.Response: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 2 of the Complaint, and therefore denies the same and leaves plaintiff to its proofs. 3. Defendant/s are subject to the jurisdiction of this court and venue is proper.Response: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 3 of the Complaint, and therefore denies the same. 4. During all Material times defendants above were married and the obligation hereafter pleaded is community and seperate obligation of each.Response: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 4 of the Complaint, and therefore denies the same. 5. Defendants became indebted to: Rocky Mountain Service Bureau. Response: Defendant denies being indebted to Rocky Mountain Service Bureau for any amount and leaves Plaintiff to its proofs. As to all remaining allegations of fact in the numbered or unnumbered parts of the complaint not specifically admitted, Defendant denies all such allegations. AFFIRMATIVE DEFENSES By and for his Affirmative Defenses, Defendant states: First Affirmative Defense1. Plaintiffs’ Complaint fails to state a claim upon which relief may be granted against this defendant because the claimant has failed to present sufficient facts that the claimant is entitled to a legal remedy. Second Affirmative Defense2.Plaintiff is not the legal holder of the alleged debt and therefore is not the real party in interest; this action should be dismissed for lack of standing. Third Affirmative Defense3.Plaintiff’s complaint is not properly verified and is not grounded in fact because it does not exhibit the alleged contract the debt is based upon, a valid statement of account, nor any valid assignment that gives Plaintiff legal title to the claim. Forth Affirmative Defense 4.Defendant reserves the right to plead additional defenses or cross-claims or counter claims that may be identified during the Defendant's investigation and/or course of discovery. Respectfully Submitted, WHEREFORE, Defendant prays that this Court find judgment for Defendant,deny Plaintiffs’ request for the relief , deny Plaintiffs’ request for interest, deny Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief. Defendant further prays that this Court hold that Defendant is the prevailing party, and dismiss Defendant with prejudice. CERTIFICATE OF SERVICE On December 07, 2013, I caused the foregoing instrument to be served by mailing a copy to all counsel of record in this case as indicated below:Attorney Dean William Hamilton 1126 S Gold St Ste 101Centralia, WA 98531 By Certified U.S. Mail, Return Receipt Requested By U.S. Mail. My Name here my addressmy phone
  15. DEFENDANT’S AMENDED RESPONSES TO PLAINTIFF'S FIRST SET OF INTERROGATORIESDefendant's Amended Responses to Plaintiffs' Interrogatories as follows: INTRODUCTORY STATEMENTThe following discovery responses are based on current investigation and discovery and this responding party therefore reserves the right to amend or supplement these responses based on information resulting from further investigation and discovery, and to introduce at trial any and all such evidence. 1.If it is your contention that the Defendant is not indebted to the Plaintiff in any amount as alleged in the Complaint, indicate the factual basis for such contention. Response:(a) The Plaintiff’s claims are barred by the statute of limitations because to the extent that the Defendant may have defaulted on the credit card agreement that is the subject of this lawsuit, that default occurred more than 3 years prior to the date the lawsuit was filed. ( b ) The Plaintiff has failed to state and cannot prove a claim on an account, either open,or account stated because the Defendant never received, personally or for the benefit of any other person, any goods, wares or merchandise, personal services, labor, or labor and materials from the Plaintiff or its assignor(s). ( c ) The Plaintiff cannot prove a claim for breach of contract because it does not have evidence of the offer, acceptance and consideration given for the original contract between the Defendant and the card issuer and any amendments to that contract. (d) The defendant denies owing any money to the plaintiff. (e) The defendant has never had a contract with the plaintiff. 2.If it is your contention that the Defendant is not indebted to the Plaintiff in any amount as alleged in the Complaint, indicate the legal basis for such contention. Response:(a) The Plaintiff’s claims are barred by the statute of limitations because to the extent that the Defendant may have defaulted on the credit card agreement that is the subject of this lawsuit, that default occurred more than 3 years prior to the date the lawsuit was filed. ( b ) The Plaintiff has failed to state and cannot prove a claim on an account, either open,or account stated because the Defendant never received, personally or for the benefit of any other person, any goods, wares or merchandise, personal services, labor, or labor and materials from the Plaintiff or its assignor(s). ( c ) The Plaintiff cannot prove a claim for breach of contract because it does not have evidence of the offer, acceptance and consideration given for the original contract between the Defendant and the card issuer and any amendments to that contract. (d) The defendant denies owing any money to the plaintiff. (e) The defendant has never had a contract with the plaintiff. 3.State whether you have ever used the credit card at issue in this case. Response: Defendant has had many credit cards in his life time and after a diligent search and reasonable inquiry was made the defendant does not remember ever applying for or using this credit card. There are many different ways to answer this and come out smelling like a rose.I don't think you want to pay the junk debt buyer several thousand dollars for his time.Make an amended answer and get it in ASAP. .
  16. Iheart said it best You can answer in law or in fact You should argue that they were answers and that Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and any agreement giving rise to the alleged debt and therefore defendant is having a hard time defending this case and having trouble answering the plaintiffs interrogatories due to lack of information provided in plaintiffs complaint. With a good reason the judge might give you more time to answer the questions and get the case moving forward. You can answer the discovery questions with out giving up anything.
  17. credit agreement letter electing arbitration with the attorney meet and confer letter your motion Your answer to the complaint remember defendant uses letters for exhibits and plaintiff uses numbers for their exhibits. Also label the exhibits and put them some cheap binders label A and B with plaintiffs name, your name & case number & judges name
  18. I think they want an answer like this. 1.If it is your contention that the Defendant is not indebted to the Plaintiff in any amount as alleged in the Complaint, indicate the factual basis for such contention.Response:(a) The Plaintiff’s claims are barred by the statute of limitations because to the extent that the Defendant may have defaulted on the credit card agreement that is the subject of this lawsuit, that default occurred more than 3 years prior to the date the lawsuit was filed. ( b ) The Plaintiff has failed to state and cannot prove a claim on an account, either open,or account stated because the Defendant never received, personally or for the benefit of any other person, any goods, wares or merchandise, personal services, labor, or labor and materials from the Plaintiff or its assignor(s). ( c ) The Plaintiff cannot prove a claim for breach of contract because it does not have evidence of the offer, acceptance and consideration given for the original contract between the Defendant and the card issuer and any amendments to that contract. (d) The defendant denies owing any money to the plaintiff. (e) The defendant has never had a contract with the plaintiff. (f) The defendant closed his account with Citi Bank(or who ever) and the balance was paid in full. 2.If it is your contention that the Defendant is not indebted to the Plaintiff in any amount as alleged in the Complaint, indicate the legal basis for such contention. Response:(a) The Plaintiff’s claims are barred by the statute of limitations because to the extent that the Defendant may have defaulted on the credit card agreement that is the subject of this lawsuit, that default occurred more than 3 years prior to the date the lawsuit was filed. ( b ) The Plaintiff has failed to state and cannot prove a claim on an account, either open,or account stated because the Defendant never received, personally or for the benefit of any other person, any goods, wares or merchandise, personal services, labor, or labor and materials from the Plaintiff or its assignor(s). ( c ) The Plaintiff cannot prove a claim for breach of contract because it does not have evidence of the offer, acceptance and consideration given for the original contract between the Defendant and the card issuer and any amendments to that contract. (d) The defendant denies owing any money to the plaintiff. (e) The defendant has never had a contract with the plaintiff. 3.State whether you have ever used the credit card at issue in this case.Response: Defendant objects to interrogatory No. 3 because it is overly broad, vague, unduly burdensome and seems to refer to material already in possession of the Plaintiff. You should have studied the rules of discovery. Objection, on the grounds that it is seeking information that is premature given that the parties are in the midst of discovery and pertinent documents have not yet been produced by the Plaintiff. Without waiving his objection, the Defendant reserves the right to update this answer to this interrogatory at a later time when that decision is made. Below is the trouble with your answers. Interrogatories must be answered completely and specifically by you in writing and must be verified. Thefact that investigation is continuing or that discovery is not complete shall not be used as an excuse forfailure to answer each interrogatory as completely as possible.
  19. 372. Common Count: Open Book Account [Name of plaintiff] claims that [name of defendant] owes [him/her/it] money on an open book account. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of plaintiff] and [name of defendant] had (a) financial transaction(s); 2. That [name of plaintiff] kept an account of the debits and credits involved in the transaction(s); 3. That [name of defendant] owes [name of plaintiff] money on the account; and 4. The amount of money that [name of defendant] owes [name of plaintiff]. New December 2005 Directions for Use The instructions in this series are not intended to cover all available common counts. Users may need to draft their own instructions or modify the CACI instructions to fit the circumstances of the case. Sources and Authority “ ‘A book account may be deemed to furnish the foundation for a suit in assumpsit only when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.’ ‘The term “account,” clearly requires the recording of sufficient information regarding the transaction involved in the suit, from which the debits and credits of the respective parties may be determined, so as to permit the striking of a balance to ascertain what sum, if any, is due to the claimant.’ ” (Robin v. Smith (1955) 132 Cal.App.2d 288, 291 [282 P.2d 135], internal citations omitted.) “A book account is defined as ‘a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation.’ It is, of course, necessary for the book to show against whom the charges are made. It must also be made to appear in whose favor the charges run. This may be shown by the production of the book from the possession of the plaintiff and his identification of it as the book in which he kept the account between him and the debtor. An open book account may consist of a single entry reflecting the establishment of an account between the parties, and may contain charges alone if there are no credits to enter. Money loaned is the proper subject of an open book account. Of course a mere private memorandum does not constitute a book account.” (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65–66 [317 P.2d 155], internal citations omitted.) “A book account may furnish the basis for an action on a common count “ when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.” ’ A book account is described as ‘open’ when the debtor has made some payment on the account, leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal citations and footnote omitted.) “The most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account.” (Interstate Group Administrators, Inc., supra, 174 Cal.App.3d at p. 708.) “It is apparent that the mere entry of dates and payments of certain sums in the credit column of a ledger or cash book under the name of a particular individual, without further explanation regarding the transaction to which they apply, may not be deemed to constitute a ‘book account’ upon which an action in assumpsit may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671, 679 [107 P.2d 434].) “The law does not prescribe any standard of bookkeeping practice which all must follow, regardless of the nature of the business of which the record is kept. We think it makes no difference whether the account is kept in one book or several so long as they are permanent records, and constitute a system of bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop (1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].) “ ‘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.) “Although such an action is one at law, it is governed by principles of equity. It may be brought ‘wherever one person has received money which belongs to another, and which “in equity and good conscience,” or in other words, in justice and right, should be returned.The plaintiff’s right to recover is governed by principles of equity, although the action is one at law.’ ” (Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.) “Since the basic premise for pleading a common count is that the person is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out. Likewise excluded are damages for a breach of an express contract. The relief is something in the nature of a constructive trust and ‘one cannot be held to be a constructive trustee of something he had not acquired.’ One must have acquired some money which in equity and good conscience belongs to the plaintiff or the defendant must be under a contract obligation with nothing remaining to be performed except the payment of a sum certain in money.” (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15 [101 Cal.Rptr. 499], internal citations omitted.) “ ‘As Witkin states in his text, “[a] common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 [5 Cal.Rptr.3d 520], internal citations 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.) Secondary Sources 4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522 1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.20, 8.47 (Matthew Bender) 4 California Points and Authorities, Ch. 43, Common Counts and Bills of Particulars, § 43.28 (Matthew Bender) 1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32
  20. To recover damages from [name of defendant] for breach of contract, [name of plaintiff] must prove all of the following: 1. That [name of plaintiff] and [name of defendant] entered into a contract; 2. That [name of plaintiff] did all, or substantially all, of the significant things that the contract required [him/her/it] to do [or that [he/she/it] was excused from doing those things]; [3. That all conditions required by the contract for [name of defendant]’s performance [had occurred/ [or] were excused];] [4. That [name of defendant] failed to do something that the contract required [him/her/it] to do; and] [or] [4. That [name of defendant] did something that the contract prohibited [him/her/it] from doing; and] 5. That [name of plaintiff] was harmed by that failure. New September 2003; Revised April 2004, June 2006, December 2010, June 2011 Directions for Use Read this instruction in conjunction with CACI No. 300, Breach of Contract—Introduction. Element 3 is needed if conditions for performance are at issue. For reasons that the occurrence of a condition may have been excused, see the Restatement Second of Contracts, section 225, Comment b. See also CACI No. 321, Existence of Condition Precedent Disputed, CACI No. 322, Occurrence of Agreed Condition Precedent, and CACI No. 323, Waiver of Condition Precedent. Equitable remedies are also available for breach. “As a general proposition, ‘[t]he jury trial is a matter of right in a civil action at law, but not in equity. [Citations.]’ (C & K Engineering Contractors v. Amber Steel Co., Inc. (1978) 23 Cal.3d 1, 8 [151 Cal.Rptr. 323, 587 P.2d 1136]; Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517, 524 [154 Cal.Rptr. 164].) However, juries may render advisory verdicts on these issues. (Raedeke v. Gibraltar Savings & Loan Assn. (1974) 10 Cal.3d 665, 670–671 [111 Cal.Rptr. 693, 517 P.2d 1157].) Sources and Authority Civil Code section 1549 provides: “A contract is an agreement to do or not to do a certain thing.” Courts have defined the term as follows: “A contract is a voluntary and lawful agreement, by competent parties, for a good consideration, to do or not to do a specified thing.” (Robinson v. Magee (1858) 9 Cal. 81, 83.) A complaint for breach of contract must include the following: (1) the existence of a contract, (2) plaintiff’s performance or excuse for non-performance, (3) defendant’s breach, and (4) damages to plaintiff therefrom. (Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913 [92 Cal.Rptr. 723].) Additionally, if the defendant’s duty to perform under the contract is conditioned on the happening of some event, the plaintiff must prove that the event transpired. (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380 [11 Cal.Rptr.2d 524].) “Implicit in the element of damage is that the defendant’s breach caused the plaintiff’s damage.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352 [90 Cal.Rptr.3d 589], original italics.) “It is elementary a plaintiff suing for breach of contract must prove it has performed all conditions on its part or that it was excused from performance. Similarly, where defendant’s duty to perform under the contract is conditioned on the happening of some event, the plaintiff must prove the event transpired.” (Consolidated World Investments, Inc., supra, 9 Cal.App.4th at p. 380, internal citation omitted.) “When a party’s failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract. Normally the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact. Whether a partial breach of a contract is material depends on ‘the importance or seriousness thereof and the probability of the injured party getting substantial performance.’ ‘A material breach of one aspect of a contract generally constitutes a material breach of the whole contract.’ ” (Brown v. Grimes (2011) 192 Cal.App.4th 265, 277–278 [120 Cal.Rptr.3d 893], internal citations omitted.) “The wrongful, the unjustified or unexcused, failure to perform a contract is a breach. Where the nonperformance is legally justified, or excused, there may be a failure of consideration, but not a breach.” (1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 847, original italics, internal citations omitted.) “Ordinarily, a breach is the result of an intentional act, but negligent performance may also constitute a breach, giving rise to alternative contract and tort actions.” (Ibid., original italics.) Secondary Sources 1 Witkin, Summary of California Law (10th ed. 2005) Contracts, § 847 13 California Forms of Pleading and Practice, Ch. 140, Contracts, § 140.50 (Matthew Bender) 5 California Points and Authorities, Ch. 50, Contracts, § 50.10 et seq. (Matthew Bender) 2 Matthew Bender Practice Guide: California Contract Litigation, Ch. 22, Suing or Defending Action for Breach of Contract, 22.03–22.50 California Civil Jury Instructions (CACI) 373. Common Count: Account Stated [Name of plaintiff] claims that [name of defendant] owes [him/her/it] money on an account stated. To establish this claim, [name of plaintiff] must prove all of the following: 1. That [name of defendant] owed [name of plaintiff] money from previous financial transactions; 2. That [name of plaintiff] and [name of defendant], by words or conduct, agreed that the amount stated in the account was the correct amount owed to [name of plaintiff]; 3. That [name of defendant], by words or conduct, promised to pay the stated amount to [name of plaintiff]; 4. That [name of defendant] has not paid [name of plaintiff] [any/all] of the amount owed under this account; and 5. The amount of money [name of defendant] owes [name of plaintiff]. New December 2005 Sources and Authority “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.) Secondary Sources 4 Witkin, California Procedure (4th ed. 1997) Pleading, § 515 1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §§ 972–973 1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.10, 8.40–8.46 (Matthew Bender) 1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32
  21. If your not listed on the complaint they are not suing you. But suing your wife is as good as suing you so study and help her win her case. I would study breach of contract and account stated also unjust enrichment,open book. These are the most common causes of action.
  22. Meet and confer letter just to plaintiffs law office.(keep a copy of the letter) File your stuff with the court. Wait for the hearing.
  23. http://www.scribd.com/JillianSheridan/documents Here are all her documents she used in her case against midland. Every thing you would need will be here on her site. She has some great reads also about junk debt buyers. Remember dont get scared there is No need to ever talk to the plaintiff except in court. Study her case,use most of her answers and if you have questions just ask. http://www.scribd.com/doc/51607569/06-12-2010-Defendants-Answer-With-Counterclaim-Midland-v-Sheridan her answer and counter claim