quagga

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About quagga

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  1. Hello Anon thanks for the response. I'm still a little confused, on whether I should or should not use elements in ASTMedic's trial breif and MIL. His MIL attacks the Affidavit in Lieu of Testimony and his Trial brief attacks the other documents the Plantiff has submitted as evidence. However since the JDB failed to comply CCP96 and can submit no evidence, I don't see how the arguments in ASTMedic's Trial brief and MIL apply to me anymore. Or should I just fill out my trial brief based on the documents I received during discovery? Thanks again
  2. Hello all, I've been following ASTMedic's post as my guide for my battle with Legal Recovery Law Offices.http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/ So per his post I've sent them my DISC-015 and have waited patiently for over 30 days and still no response to my request. The only question now is how should i prepare my trial brief and MIL. I figure i would just modify the MIL to specify all evidence and not just the Affidavit in Lieu of Testimony. As for the Trial brief should focus my whole argument around their failure to comply with CCP96 or should I still follow the arguments listed in the original trial brief? Thanks again for your help
  3. Hello again all. I wanted to post a update with my battle with PRA/LRLO in California. Also if anyone could chime in, any help would be greatly appreciated. Here are my two previous posts for details but I'll give a summary as well. Original Post with Summons (Part 1) http://www.creditinfocenter.com/forums/there-lawyer-house/314322-summons-pra-california.html Discovery Questions Response to Plaintiff (Part2) http://www.creditinfocenter.com/forums/there-lawyer-house/315648-help-discovery-answers-california.html Summary -PLD-050 General Denial Response Sent -BOP Sent -BOP Denied due to Account Stated -Meet and Confer Letter Sent for BOP -Plaintiff Request Discovery -Defendant Responds to Discovery(see post) -Defendant Sends Request for Production of Documents -Plaintiff Responds to Request for Production albeit insufficiently Plaintiff basically objects to every RFP(shown below) and sends me a Bill of sale from the OC which does not show my name nor the alleged account. And a copy of a "Consumer Credit Card Customer Agreement & Disclosure Statement" None of which is signed by me. So this is where I am currently with my lawsuit. I am under the impression I will have to send a Meet and Confer Letter first for a insufficiently answered RFP. Then I would do a Motion to Compel if they continue to be uncooperative. Any advice would be appreciated Thanks again quagga -------------------------------------------------------- Request for Production No.1 The Original signed application establishing account Response to Request No.1 Plaintiff objects to the request on the grounds it is overbroad and burdensome. Plaintiff further objects to the request to the extent that it calls for information that is irrelevant, immaterial, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to the form of the question as vague and ambiguous. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Request for Production No.2 Charge slips bearing defendant's signature which establishes use of the account. Response to Request No.2 Plaintiff objects to the request to the extent it is repetitive, overlapping, and duplicative of request for production number 1. Plaintiff further objects to the request to the extent it calls for information that is irrelevant, immaterial, and no reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Plaintiff further objects to the request on the grounds it is overbroad and burdensome. Request for Production No. 3 The original written agreement in which defendant allegedly assented to the terms of the account Response to Request No. 3 Plaintiff objects to the request to the extent it is repetitive, overlapping, and duplicative of request for production number 1 and 2. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Plaintiff further objects to the request on the grounds it is overbroad and burdensome. Plaintiff further objects to the request to the extent it calls for information that is irrelevant, immaterial, and no reasonably calculated to lead to the discovery of admissible evidence. Request for Production No. 4 A complete history of the account from day one, establishing the legitimacy of balance sought. Response to Request No. 4 Plaintiff objects to the request on grounds it is overbroad and burdensome and not limited in time or scope. Plaintiff further objects to the request on the grounds it is vague and ambiguous. Plaintiff further objects to the request to the extent it calls for information that is irrelevant, immaterial, and no reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Request for Production No. 5 Any document setting forth the choice of law provision Response to Request No 5 Plaintiff objects to the request on the grounds it is overbroad and burdensome. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Plaintiff further objects to the request on the grounds it is vague and ambiguous. Request for Production No. 6 Any document plaintiff intends to introduce at trial which establishes the exact day the subject went into default. Response to Request No. 6 Plaintiff objects to the request on the grounds it is vague and ambiguous and overbroad and burdensome. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Plaintiff further objects on the grounds the request is premature as no trial date has been set. Request for Production No. 7 Any document produced by plaintiff in normal course of business which states and defines the exact statues the choice of law provision seeks to enforce. Response to Request No. 7 Plaintiff objects to the request on the grounds it is vague and ambiguous. Plaintiff further objects to the request on the grounds it is overbroad and burdensome. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Plaintiff further objects to the extent it calls for the mental impressions and/or legal conclusions of its attorneys. Request for Production No. 8 Any recording, or transcript of any recording, of telephone calls in which defendant discusses alleged owed amount. Response to Request No. 8 Plaintiff objects to the request to the extent it calls for information that is irrelevant, immaterial, and no reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Plaintiff further objects to the Discovery Request to the extent that any Request may be construed as seeking the disclosure of confidential, commercial and/or proprietary information or trade secrets. Request for Production No. 9 Any canceled check or copies of canceled checks, or other verified payments on the account plaintiff intends to introduce at trial. Response to Request No. 9 Plaintiff objects to the request as premature as no trial date has currently been set. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Plaintiff further objects to the request to the extent it calls for information that is irrelevant, immaterial, and no reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to the request on the grounds it is overbroad and burdensome. Request for Production No. 10 Proof of mailing of monthly statements. Response to Request No. 10 Plaintiff objects to the request to the extent it calls for information that is irrelevant, immaterial, and no reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to the request on the grounds it is overbroad and burdensome. Plaintiff further objects on the grounds the propounding party has or had equal opportunity to retain said documents. Request for Production No. 11 Any documents evidencing that the defendant retained monthly statements for an unreasonable amount of time. Response to Request No. 11 Plaintiff objects to the request on the grounds it is overbroad and burdensome. Plaintiff further objects to the request on the grounds it is vague and ambiguous. Plaintiff further objects to the request to the extent it calls for information that is irrelevant, immaterial, and no reasonably calculated to lead to the discovery of admissible evidence. Request for Production No. 12 Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time." Response for Request No. 12 Plaintiff objects to the request on the grounds it is vague and ambiguous and overbroad and burdensome and not limited in time or scope. Plaintiff further objects to the request to the extent it calls for information that is irrelevant, immaterial, and no reasonably calculated to lead to the discovery of admissible evidence. Request for Production No. 13 Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder. Response for Request No. 13 Plaintiff objects to the request on the grounds it is vague and ambiguous. Plaintiff further objects to the request to the extent it calls for information that is irrelevant, immaterial, and no reasonably calculated to lead to the discovery of admissible evidence. Plaintiff objects to the request on the grounds it is overbroad and burdensome and not limited in time or scope. Plaintiff further objects to the Discovery Request to the extent that any Request may be construed as seeking the disclosure of confidential, commercial and/or proprietary information or trade secrets.
  4. Here you go could you help me with the wording. Their Causes of Actions are Breach of Contract and Account Stated. Plantiff Defendant DEMAND FOR BILL OF PARTICULARS PROPOUNDED BY DEFENDANT TO PLAINTIFF 1. TO PLAINTIFF, PORTFOLIO RECOVERY ASSOCIATES, LLC, AND THEIR ATTORNEY OF RECORD. DEMAND IS HEREBY MADE UPON YOU pursuant to Code of Civil Procudure 454 to furnish to defendant, within ten days hereafter, a bill of particullars setting forth the items and details of the account on which the cause of action for ACCOUNT STATED for which plaintiff's complaint is based, including the date of each transaction; a description of the services, materials or goods supplied or other considerations rendered; the price or charge made for each such item or transaction; and all payments or credits that have been made to the account starting from a zero balance. Please also provide a copy of the original contract between plaintiff and defendant and a copy of any agreement assigning to plaintiff the account at issue in this litigation. DATE SIGNATURE OF DEFENDANT Letter Requesting Response to Demand for Bill of Particulars and Warning of Intent to Ask the Court to Exclude Evidence Date: xx/xx/xxxx To: Attorneys Name Address & Tel Attorney for Plaintiff:: JDB Assholes Inc. Re: Failure to Respond to Demand for Bill of Particulars: Case xxxxxxxxx On __________________________________ a Demand for Bill of (Date the Bill of Particulars was given or mailed) Particulars was served on you in accordance with Code of Civil Procedure section 454. I have not received a response to the items demanded . This letter gives you formal notice that I intend to ask the court to exclude at the time of trial any evidence that I owe you money on the alleged account, contract, or other basis for which you are suing me. My request will be based on your failure to provide a proper response to my Demand for Bill of Particulars as provided in Code of Civil Procedure section 454. Sincerely,_____defendent___
  5. Hello Adsoft Also your second letter is just a letter or is done on pleading paper? I assume I'll need proof of service as well? I don't know if this would be a problem but when I sent out my Original BOP it was not in the same language as yours. I actually listed account stated in the request. I'm gonna send the followup just wanted to ask the question though. DEMAND IS HEREBY MADE UPON YOU pursuant to Code of Civil Procudure 454 to furnish to defendant, within ten days hereafter, a bill of particullars setting forth the items and details of the account on which the cause of action for ACCOUNT STATED for which plaintiff's complaint is based, including the date of each transaction; a description of the services, materials or goods supplied or other considerations rendered; the price or charge made for each such item or transaction; and all payments or credits that have been made to the account starting from a zero balance. Please also provide a copy of the original contract between plaintiff and defendant and a copy of any agreement assigning to plaintiff the account at issue in this litigation.
  6. Oops, my sincere apologies about that, my brain is in a bit of a funk right now. Yes that is the form I received. I have listed what was checked in the above post.
  7. Hello ADSOFT The account is a credit card and not a loan. I will also send the second letter for the BOP. What I have is a Civil Case Cover Sheet (California form CM-010) and this is whats checked on the form. 1. Limited Case (demand under 25,000) For case type 2. Contract Rules 3.740 collections (09) 3. This case is not complex under rule 3.400 of California rules of court. 4. Remedies sought monetary 5. This is not a class action law suit Thanks again
  8. Ok I updated my responses to conform to CCP requirements. If anyone has anything else add please do so, I'm gonna mail these in soon as my 30 days is almost up. Thanks again
  9. Thanks you racecar. I looked over the documentation and I think it confirms what I need to do. I don't really thing I have grounds to object any of the interrogatories or admissions. I'll just answer it based on current information know based upon the proof provided by the plaintiff which is nothing.
  10. It would appear that my current responses are not valid. I checked CCP and in order for me to object I would need to list the specific grounds for the objection, such as argumenative. I went over a list of reasons for objections I could not find any that would apply. CCP for Interrogatory objections 2030.240 ( If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. CCP Admission Objections 2033.230. ( If an objection is made to a request or to a part of a request, the specific ground for the objection shall be set forth clearly in the response. If an objection is based on a claim of privilege, the particular privilege invoked shall be clearly stated. If an objection is based on a claim that the matter as to which an admission is requested is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. The valid responses for Interrogatories are 2030.210 (1) An answer containing the information sought to be discovered. (2) An exercise of the party's option to produce writings. (3) An objection to the particular interrogatory. Valid response for Admissions is 2033.220. (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. (2) Deny so much of the matter involved in the request as is untrue. (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. Looks like i'll have to change my responses to the Interrogatory 1 to where I contest the said account. And I would deny to answer the other Interrogatories as it would conflict with my first Interrogatory answer. And for the Admissions I will change me answers to Deny with no explanation. Does this sound right? Thanks
  11. Thank you everybody for all the help I have updated the original post with updated responses. If you anyone could look them over it would be appreciated.
  12. You know what after reading a bit more and from the advice given. I think I know what my problem is. I've been looking at this from the wrong mindset. I've been answering these ROGs based upon what I remember about the account which may or may not be accurate. I should be answering these ROGs based upon what evidence the JDB have provided me. And they haven't provided me crap for evidence except some some signed affidavit stating that these facts are correct by their own lawyer. Man I feel so stupid at the moment. Luckily I came here and asked for advice before mailing it.
  13. See this is where i'm confused. I thought Discovery needed to be answered accurately as possible. Am I able to deny it even though I know it not to be accurate? I do admit it has been a while and I don't remember a lot of the details about the account but is that a valid reason to deny? I do know that I had a credit card with Wells Fargo. However I don't know how much I should admit. I am reading a book "How to win your lawsuit" by NOLO press saying that I should not deny things that are obviously true as the judge will not take kindly to making the plaintiff prove ever single point. Is this the case or should I be denying all but the plain and obvious. And if I do deny I how do I explain it. For example Interrogatory 3. If i contend that I opened a account with Wells Fargo Bank, how should I answer Interrogatory 4 explaining why I contend Interrogatory 3. I was planning on attacking the JDB's standing to sue.
  14. Thank you ADSOFT for you quick response. Here is the response I was given for by the JDB. Also I have included the two cause of actions in the complaint. Regarding the Bill of Particular you have requested, pursuant to CA Civ. Proc. 454: A demand for bill of particulars may be served on the plaintiff only in a action on "an account." As stated in the Code: "it is not necessary for a party to set forth in a pleading the itmes of an account therein alleged, but he must deliver to the adverse party after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof..." A bill of particulars is not appropriate in an action on an account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: ie., there is nothing left to itemize. [Ahlbin v. Crecent commercial Corp. (1950) 100 Cal.App.2d 646, 648, 224 P.2d 131, 133--plaintiff may ignore defendant's demand] Plaintiff's complaint alleges breach of contract and account stated as causes of action. As such it is plaintiff's position Bill of Particulars is inapplicable to plaintiff's cause of action. Factual Allegations Common To All Causes of Action 6. Defendant(s) are over the age of 18 and indebted to Plaintiff for credit received through purchases/cash advances and/or monies loaned and received and furnished to the Defendant(s) by the original creditor, WELLS FARGO BANK, N.A., and all related finance charges and/or late fees incurred pursuant to the terms and conditions of the contract(s). For valuable consideration, the original creditor sold, assigned and/or transferred the clams underlying the causes of action set forth in this Complaint to the Plaintiff, who is the assignee and/or sole owner of such claims with all legal rights to pursue collection of said debt(s) from the Defendant(s), and all legal right to release or satisfy said debt(s). This credit is identified by the Plaintiff as an account having the last four digits XXXXXXXXXXXXX0001 (the “Account(s)”). 7. Defendant(s) agreed to pay these monies to the Original Creditor as provided for in the agreement between Defendant(s) and Original Creditor. The terms and conditions under which Defendant(s) agree to repay these monies are set forth in a written credit card and/or loan agreement. Defendant(s) consented to these terms either by an authorizing signature on the application and/or agreement or by Defendant(s) use of the credit instrument and/or monies provided. 8. // 9. Plaintiff and Plaintiff's assignors and/or predecessors have duly performed all conditions on its/their part, except the conditions and covenants it was/they were excused or prevented from performing. Despite Plaintiff's demand, Defendant(s) have not repaid Plaintiff for the charges made and/or the monies loaned, in the amount(s) of $X,XXX.XX 10. Billing statements were mailed to Defendant(s). Plaintiff is unaware of any unresolved dispute conserning a billing error. 11. Within the past (4) years, on or about XX-XX-2008, the Defendant(s) breached the agreement by failing to pay the Original Creditor. 12. Plaintiff has made a demand for payment of monies owed, but Defendant(s) has either failed, refused or neglected to pay Plaintiff as agreed. Defendant(s) are, therefore, in default under the terms of the party's agreement 13. No part of the above balance owed has been paid to date and said balance is now due and owing from Defendant(s) First Cause Of Action (Breach of Written contract) (As Against All Defendants) 14. Plaintiff sets forth by reference as though fully set forth below each and every allegation of paragraph 1-13 of this Complaint. 15. The Original Creditor and Defendant(s) entered into a written contract(s) wherein at the request of Defendant(s), the Original Creditor extended credit and/or provided financing to the Defendant(s). In return, Defendant(s) agree to make payment(s) in accordance with the terms and conditions of the contract. 16. The Original Creditor sent to Defendant(s) bills reflecting, inter alia, all charges incurred with the Account(s), the payment due, and the total balance due. Where the debt at issue herein was a credit card, each statement informed Defendant(s) of the duty to submit and disputes of the charges set forth in such statement, in writing, within sixty days from the date of the statement. 17. Between the date of the aforementioned contract(s) to the present, Defendant(s) breached said contract(s), by ceasing or failing to make the payment due on the Account(s) 18. No part of the principal sum $X,XXX.XX has been paid to date and said sum is now due and owing by Defendant(s) to the Plaintiff. 19. As direct and proximate result of Defendant(s)' breach of said written contract, Plaintiff has been damaged in the above stated sum, together with interest thereon in the amount of $0.00 plus reasonable attorney's fees and cost where allowed by law or contract or accrding to proof. Second Cause Of Action (Account Stated) (As Against All Defendants) 20. Plaintiff sets forth by reference as through fully set forth below each and every allegation of paragraph 1 through 19 of this Complaint. 21. The Account(s) was stated in writing by and between the Original Creditor and Defendant(s) and on such statements a balance(s) of $X,XXX.XX was ultimately stated as due and owing. However, Defendant(s) has not paid the amount owing as agreed. 22. There is now due, owing, and unpaid from Defendant(s) to Plaintiff the above stated balance owed for purchases, cash advances and/or monies loaned, and finances charges and/or late fees incurred pursuant to the terms and conditions of the contract(s). 23. Plaintiff alleges that there is an Account(s) stated by operation of law wherein the Original Creditor billed Defendant(s) for the credit balance and received no objections to it. 24. No part of the above balance owed ahas been paid and said amount is now due and owing from Defendant(s) to Plaintiff, together with interest thereon in the amount of $0.00 plus reasonable attorney's fees and costs where allowed by law or contract o according to proof.