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  1. *UPDATE - UPDATE - UPDATE* Looks like Midland is requesting to dismiss the case! See Post #20... Ok, my trial is set for May 24, 2013 (Civil Trial Assignment). Seventeen days away. I've pretty much done things half-heartedly up til now - and now I'm a mess. Yes, my own fault in not attacking this thing head on. Today I tried to file a Graduated Sworn Denial on Account and the clerk said that "Never seen one of these before, this looks like an Answer...we can't file this" she had me confused when I left the courthouse empty handed and back home feeling downtrodden. Since I don't feel like I know enough and time is short (still working on My MIL and Trial Brief with help from ASTMedic and Aticnib's great posts) I'm beginning to wonder if it's realistically too late to win with any possibility and maybe I should bluff my way to a greatly reduced settlement. Question #12 in my Q&A below explains what I've done/sent so far. Where do I go from here? What should I do. I'm lost. Any responses or help is so greatly appreciated! (scared in Sac)... Pint
  2. Okay so I sent req. for prod of docs and rec'd a few things of which is a very generic bill of sale- I have a few questions about it.
  3. The cause of action listed are 1. Account stated and 2. Money Lent Paragraph 1. The true names and cpacities of Defendents herin sued by the fictitious names as DOES 1 to 10, Inclusive are unknown to Plaintiff, who therefore sues those Defendents under, pursuant to, and in accordance with the provisions of Section 474 of the Code of Civil Procedure. Plaintiff will ask leave of court to amend this complaint as and when the true names and capacities of Defendents named herin as DOES 1 to 10 have been ascertained. Paragraph 2 At all times herein mentioned, Defendants, and each of them, were agents, servants and employees of each other and every remaining Defendant, and in doing the things alleged were acting in the course and scope of said authority of such agents, servants and employees. 3. Plaintiff is now and was at all times herein mentioned a limited liability company authorized to do business in the State of California. 4. Plaintiff is informed and believes and thereon alleges that Defendant XXXXXXX AKA XXXXX is an individual who resides in the City of XXXX, County of Los Angeles, State of California. 5. Before commencement of this action, in those cases where recovery of costs is dependent on such notices, Plaintiff informed the Defendant(s) in writing that it intended to file this action and that this action would result in a judgement against Defendant(s) that would include court costs and necessary disbursements allowed by C.C.P. 1033( (2). FIRST CAUSE OF ACTION Account Stated (Against All Defendants) 6. Plaintiff repeats and repleads and incorporates by reference the allegations made in Paragraphs 1 through 5 of this complaint. 7.On July 31, 2009, defendants were indebted to the original creditor xxxx in the sum of $x,xxx.xx on an account stated in writing. This xxxx account was for credit card purchases and/or cash advances and Defendant was billed monthly and failed to dispute as required under Federal Fair Billing Act applicable to such account (15 USC 1666 et seq.) 8. Prior to filing this complaint, all right, title and interest in the agreement which is the subject of this lawsuit, was sold and assigned by the original creditor, xxxx to CAVALRY SPV I, LLC. 9.Plaintiff made demand on defendants for payment of that sum, but no part of that sum has been paid to plaintiff, and the entire amount is now due and unpaid. 10. The payoff on this account as of July 31, 2009 is x,xxx.xx, plus interest will continue to accrue at the rate of 19.990 from July 31, 2009. SECOND CAUSE OF ACTION Money Lent (Against All Defendants) 11. Plaintiff repeats and repleads and incorporates by reference the allegations made in Paragraphs 1 through 10 of this complaint. 12. Within the last four years Defendant became indebted to original creditor xxxx, in the sum of $xxxx.xx for money lent to or paid out for the benefit of Defendant at his/her request, based on Defendant use and benefit of his/her account. 13. Neither the whole nor any part of the above sum has been paid , although payment has been demanded, leaving a balance due, owing and unpaid to Plaintiff in the principal amount of $xxxx.xx, plus interest at the rate of 19.990% per annum, and costs of suit.
  4. I was sued by Cap1 in 2010 and was never served. I only found out about this recently when I was sued in another case and saw this case listed under my name when I searched court records. Should I file a motion to vacate default, a motion to quash service or both? This is the Record of Actions from the court website: Thank you! 17 PAYMENT RECEIVED BY FOR 141 - WRIT IN THE AMOUNT OF 25.00, TRANSACTION NUMBER 11142391 AND RECEIPT NUMBER 10966283. 05/10/2012 1 pages 16 WRIT ISSUED. 05/10/2012 NV 15 MEMORANDUM OF COSTS AFTER JUDGMENT; ACKNOWLEDGMENT OF CREDIT AND DECLARATION OF ACCRUED INTEREST - LESS THAN $100 FILED BY CAPITAL ONE BANK USA, N.A. ON 04/25/2012 04/25/2012 2 pages 14 CASE DISPOSED WITH DISPOSITION OF DEFAULT JUDGMENT BY CLERK 01/21/2011 NV 13 COMPLAINT DISPOSED WITH DISPOSITION OF DEFAULT JUDGMENT BY CLERK. 01/21/2011 NV 12 THE COURT ENTERS JUDGMENT ON THE COMPLAINT FOR CAPITAL ONE BANK USA, N.A. IN THE AMOUNT OF 3286.82 PRINCIPAL, 267.50 COSTS AND 0.00 ATTORNEY FEES AGAINST (me) 01/22/2011 NV 11 JUDGMENT FILED BY CAPITAL ONE BANK USA, N.A. ON 01/21/2011 01/21/2011 2 pages 10 DECLARATION - OTHER FILED BY CAPITAL ONE BANK USA, N.A. ON 01/20/2011 01/20/2011 13 pages 9 WAIVER FILED BY CAPITAL ONE BANK USA, N.A. ON 01/20/2011 01/20/2011 1 pages 8 REQUEST FOR ENTRY OF DEFAULT FILED BY CAPITAL ONE BANK USA, N.A. ON 01/20/2011 01/20/2011 4 pages 7 REQUEST FOR DISMISSAL FILED BY CAPITAL ONE BANK USA, N.A. ON 01/20/2011 01/20/2011 2 pages 6 PROOF OF SERVICE OF STATEMENT OF VENUE - SUBSTITUTE FILED BY CAPITAL ONE BANK USA, N.A. ON 08/18/2010 08/18/2010 3 pages 5 DECLARATION - OTHER (VENUE) FILED BY CAPITAL ONE BANK USA, N.A. ON 07/19/2010 07/19/2010 2 pages 4 PAYMENT RECEIVED BY FOR 137 - COMPLAINT OR OTHER 1ST PAPER <=$10K IN THE AMOUNT OF 205.00, TRANSACTION NUMBER AND RECEIPT NUMBER 10509180. 07/19/2010 1 pages 3 CIVIL CASE COVER SHEET FILED BY CAPITAL ONE BANK USA, N.A. ON 07/19/2010 07/19/2010 1 pages 2 SUMMONS ISSUED AND FILED FILED BY CAPITAL ONE BANK USA, N.A. ON 07/19/2010 07/19/2010 1 pages 1 COMPLAINT FILED BY CAPITAL ONE BANK USA, N.A. ON 07/19/2010
  5. General Info About My Case Info About My Bop Request Info About My Request for Docs I just started to work on a motion to compel further response and I was wondering if I should include information about the BOP request & dropping the first cause of action in the background section or if I should only talk the request for docs. Also, should I make it a motion to compel further response or in the alternative an order to preclude? And just to make sure, I will need to submit? Notice of Motion to Compel Further ResponseMotion to Compel Further ResponseExhibitsSeparate Statement in Support of Motion to Compel Proposed Order with Sanctions
  6. does anyone have a sample form for defendant's first request for production of documents to JDB? i searched everywhere for some guidance on how to draft discovery, but no luck so far. thanks for any assistance.
  7. I am wondering if there is a case where somebody has won a motion to compel in regards to a BOP where there is both account stated AND breach of contract.
  8. Let me start out by saying I HATE being in the position of having to defend myself in pro per against a Junk Debt Buyer in Los Angeles County. I find the whole process stressful and frustrating and would love to hide my head in the sand until it all goes away. It's tough trying to learn on the fly and prepare the best defense possible (although boards such as CI are amazing!), etc. However, now that I've made my official moan and groan, I do realize that my best defense lies in preparing myself for a long haul, in anticipating and preparing for each step of the process BEFORE the issue becomes urgent. Even though I have not even had a trial date scheduled (CMR coming up in about 2 months), and I am still in the process of propounding discovery on the Plaintiff, and I anticipate trying the 'ol Motion to Dismiss I need to also focus on what I believe will be my fall-back before trial... Motion(s) in limine! I've been researching how to prepare a proper Motion in limine and have found some good information already. For example, I have found that some of the common types of motions in limine have included: - Evidence that consumes unnecessary time or duplicative testimony or evidence - Evidence that creates a substantial danger of undue prejudice - Evidence that confuses the issues or is misleading when weighed against the probative value of the challenged evidence - Evidence that lacks foundation - Inadmissible business records or other writings relied upon by a witness - Evidence that raises authenticity issues - Evidence that would be barred by the discovery rules - Exclusion of experts not disclosed in response to a CCP 2034.10 demand - Exclusion of witnesses not listed in the witness list - Exclusion of expert opinions based on speculation - Limiting expert opinion to those opinions provided in deposition testimony - Opinions from lay witnesses - Limiting witnesses to only those identified in discovery There are many items in the above list that I strongly believe I could lay a foundation. I want to throw a wide net over the foundations to exclude... if it works, then without the evidence then it subsequently leads to the logical dismissal (hopefully with prejudice). --------------------- What I have not found is an answer to my questions (remembering that this applies to Los Angeles County Superior Court): Can I combine several of these types/basis issues into a single motion? If not, why not? If so, how would I go about structuring the Motion/Title, etc? Any other input? Thank you all in advance for your assistance in this matter! I look forward to hearing from you.
  9. So I pulled up a free credit report today and found that a company named Unifund has done a hard pull on my credit history, and I have a negative item from a company called Asset Aquisitions. I found the contact number for Unifund, told them what I just wrote, and they referred me to Lang, Richert & Patch the lawfirm representing them. I called the firm, told them the same, and spoke with a woman named Lydia. She let me know that her firm represents Unifund, that they want to collect on a citibank mastercard credit card I had in 2007, the last payment of which was made in january 2010. She stated they have sent me a letter giving me the opportunity to dispute the validity (which I never received) and have attempted to serve me (I have yet to be served). She told me the total amount on the card was 4000, that unifund wants 6000, and they would consider setlling for 4900. She also said I could make a payment plan with them to settle the debt, but I woudl incur court fees and other expenses. I told Lydia I needed some time to figure all of this out, and she said I have about 2 weeks to get back to her if I would like to settle. About me, I'm in my last year of college, and live off of grant money and student loans. I work as an unpaid intern in a lab, and go to school full time. Needless to say, I do not have 5000 to pay for a settlement. The card was opened by my father in my name, but was used by my father. While I understand this wasnt a smart decision, as my parents were going through tough times and needed the extra assistance. I was happy to help them and be there for them. My father has since gone through bankruptcy and I assume he thought this card would be wrapped up in that bankruptcy. Obviously this wasnt the case. Both my father and I live and work in california, the card was made and maintained in the same state, and the lawfirm is also in california. I have several questions, the first being, is too late to dispute the validity of the debt? Also, as the SOL for the debt has yet to be reached, do I have any chance of negotiating them to a lower settlement? What steps if any can I take to defend myself if/when I am served and this case goes to court. Finally what should I be doing? Any help or advice is greatly appreciated!
  10. Okay have been working on my answer to summons received from Asset Acceptance, pretty confident with filing the general denial after all the research I have done and not a lot, if any, defenses with the exception of the vague, etc etc. I feel pretty comfortable addressing the common count allegations of open book account stated in writing. However they have also listed the common count of unjust enrichment. I have done some research on is but haven't come up with a whole lot, so if anyone who has any experience or information on how to address this allegation would be great, specifically if there is anything I can assert in my answer up front to hopefully take care of that one. Some of my questions are: What is the SOL in California in this type of cause of action? So far the case law I have found shows 3 years however, those cases were within one of the specifically named sections within the CCP section. Does anyone know of a statute that addresses this type of debt? I have been researching but haven't come across one yet. If I can argue the 3 year SOL then will be able to put this allegation outside of SOL. I am assuming that to be able to assert this cause of action the Plaintiff must still prove their standing. I know they are going for a quasi-contract theory on this claim, in case they can't prove the written, however, if they assert even part of an express agreement, would that be sufficient to attack the unjust enrichment claim? Case law I have found so far holds that if there is an express agreement then one cannot recover under unjust enrichment. I think this is telling me they don't really have anything and they are throwing everything at the wall to see if it will stick, hoping I don't respond. What are the elements they have to prove for unjust enrichment? How much must they have to show that I allegedly accepted and received benefits? Would it be the same as for account stated, basic accounting from day one of the account? Thanks for all the help and advice so far, everyone has been so informative and helpful.
  11. Hi everyone, I was served about two weeks ago and have been researching what to do. I'm a full time student at the moment and will be leaving my job at the end of the month (which means they couldn't garnish any wages either way). The only asset to my name is a fully paid off car (which is going on sale soon actually). I've been forced to default on this card (and a negative balance on their wells fargo checking account) due to health reasons. I've never spoken a word with the collection agency. I'm not entirely sure how close I am to the statute of limitations and my credit reports don't show this account anymore. I know it's been over three years since my last payment but don't know if it hit 4 years (which is SOL for cali). I'm doing as much readin as i can, but being a full time employe and student drains my energy and time, any and all help is appreciated! Thank you guys for having this wonderful forum to help people fight back! Here are the answers to the standard questions: 1. Who is the named plaintiff in the suit? Me 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Brachfeld Law Group, P. C. 3. How much are you being sued for? $8,553.42 4. Who is the original creditor? (if not the Plaintiff) Wells Fargo Bank 5. How do you know you are being sued? (You were served, right?) Served 6. How were you served? (Mail, In person, Notice on door) In Person 7. Was the service legal as required by your state? I beleive so Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Haven't spoken one word to them, ever. 9. What state and county do you live in? California, Los Angeles North-Central 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) I coulnd't find the exact info on this, but over three years ago. 11. What is the SOL on the debt? 4 years 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). The court's website couldn't find my case number, i guess i'm just served. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. I haven't done anything. 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 30 days Charges are: A) - An open book account for money due - because an account was stated in writing by and between plaintiff and/or Plaintiff's assignor and defendant in which it was agreed that defendant was indebted to plaintiff and/or Plaintiff's assignor - for goods, wares, and merchandise sold and delivered to defendant and for which defendant promised to pay plaintiff or plaintiff's asignor - for money lent by plaintiff, or plaintiff's assignor, to defendant at defendant's request (the sum of $8,553.42) - for money lent by plaintiff, or plaintiff's assignor, to defendant at defendant's request - for money paid. laid out, and expended to or for defendant at defendant's special instance and request - Other: By the terms of the said agreement(s), Plaintiff or Plaintiff's assignore provided defendants, and each of them, with services rendered and/or goods, wares and merchandise and/or extension of credit at defendant's special instance and request and in consideration thereof defendants promised to provide payment in the sum of $8,553.42 and interest thereon which defendants and each of them failed to provide. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ So i've sone some reading and it seems like I can answer with a general denial? I saw this form: So I guess step one is to just fill this out and mail it to the court and the law group? How would i answer question #2 on the form? I also read to send a BOP to them, but i don't know what that is or where to find one. Would i sent it at the same time as my "answer" just mail it to the court and the law group? Also, the court they liste is one city over, i live about 13 miles form teh courthouse, any way to change the venue? Thanks to everyone that helps in advance!
  12. This site is great and filled with so much good advice!! I am being sued by Mandrich LLC CACH for a debt they purchased from HSBC. I have followed so many of the suggestions from all of you! I responded to their first notice of judgement with a general denial, I answered their ROG's and Discovery request with responses I got from this site. I served them with a BOP as many of you suggested. I received their letter denying my request for a BOP but they did send me some doc's on the debt they said it was a courtesy and not part of my BOP request. I just received from them a filing where they are asking for a trial date. Can anyone help me? Where do I go from here? In the doc's they sent the HSBC agreement has a arbitration clause. Is this a good path?? Help!! Here is some background information on my case Being sued by- CACH Plaintiff's attorney- Mandrich LLC Amount they are asking for- $4,200.00 Original creditor- HSBC Served in person Assuming I was served legally? I received a few demanding payment Last payment on the account was early 2010 Debt has never been disputed I see so much great help being given here! Just hoping someone can offer some help??!!
  13. Hey everyone, I'm new to posting, but this board has been amazing, captivating my interest for a while now. I've read a lot of really great tips and insight into how this whole process works, and now that I have to deal with it myself, I hope it wouldn't be too much trouble to ask for some of that insight. My question is regarding a "Stipulation for Judgment" that I received about a week ago. The people I've been dealing with are a law firm representing Capital One out of the Los Angeles area. Here's how I got it: I received a complaint/summons that was actually given to a relative of mine while I was out of town (they signed for it because they had no idea what it was). It reached my hands with about 3 days before the answer deadline. I filed an answer with a general denial of claims because they didn't provide any information about it, and I was just hoping they would be willing to talk about settling. After I filed my response, the law firm called and asked if I could work out an agreement. We talked about payments and finally settled on a payment plan, and they told me I have 10 days to sign the documents they send to make it happen. In the meantime, I also received a notice from the court about my CMC date, as well as an ADR packet. I was about ready to sign the Stipulation for judgment, but after reading some posts on here, it just seems fishy, and I wanted to run it by someone who knows what they are talking about (currently I cannot afford an attorney or court fees). Here is the summary of the content: Capital One Bank vs. Myself STIPULATION FOR ENTRY OF JUDGMENT It is hereby stipulated, by and between the Plaintiff (Cap One) and defendant (Me) as follows: 1. This matter has been settled and compromised pursuant to the terms of this stipulation which contains the entire agreement of the parties. There are no oral or written agreements or understandings not contained herein. 2. Defendant shall pay plaintiff a) a down payment of 100.00 to be received on or before March 23, 2011, plus a minimum of no less than $100.00 to be received on or before the 23rd of each and every month thereafter through August 23, 2011. The total amount defendant will pay plaintiff will be as follows: $2600 principal, $800 accrued interested, interest at the rate of 10% per annum from March 23, 2011 to the completion of payments, plus c) $600 attorneys' fees and costs of suit in the amount of $330, plus d) a first appearance fee, if one has not already been paid to the court, of $225 by separate check, made payable to LAW FIRM to be utilized in the filing of this stipulation. For purposes of this stipulation, payments shall be applied first to BLAH BLAH BLAH then BLAH BLAH, etc. Interested shall continue to accrue pending performance of this stipulation. It is hereby agreed that after August 23, 2011, the parties will try to negotiate a higher payment level with payments to continue at the negotiated rate on the negotiated schedule until the total judgment plus interest at the legal rate of 10% per anuum is paid in full. In the even that the parties do not agree to a new payment amount, the total balance remaining on the judgment plus interest will be all due and payable on or before September 23, 2011. 3. All payments pursuant to this stipulation shall be made payable to Capital One, and mailed to plaintiff's attorneys. 4. Defendant shall have a 10 day grace period on all payments with the exception of the initial down payment and any appearance fees. 5. Defendant agrees that plaintiff may give notice of conditional settlement pursuant to rule 225 of the California Rules of Court and/or may dismiss this action with a reservation of jurisdiction pursuant to Code of Civil Procedure Section 664.6 as appropriate and in plaintiff's discretion. Defendant understand and agrees that there will be no dismissal before filing and approval of this stipulation as an order of the court. Plaintiff and defendant agree that the court shall retain jurisdiction of this action pursuant to Code of Civil Procedure Section 664.6 regardless of any dismissal, pending the completion of all payments by defendant pursuant to this stipulation. The parties further agree that this stipulation may also be enforced by independent action. 6. Time is of the essence in the performance of this stipulation and payments due hereunder. 7. Acceptance of any one or more late payments or anyone acting on plaintiff's behalf shall not constitute a waiver or in any way prejudice plaintiff's right to receive and demand timely payments thereafter or to declare a default hereunder. Plaintiff, in its sole discretion, shall have the right to declare a default if any payment is not timely made as required herein, regardless of any previous failure to do so. 8. In the event that any payment pursuant is not received by plaintiff's counsel pursuant to this stipulation, defendant shall be in default and plaintiff may immediately file a motion to vacate the dismissal, if any, and to enter judgment against the defendant for the full amount of all sums prayed for in plaintiff's complaint, interest, attorneys' fees and court costs, less credit for all payments received. 9. Defendant hereby agrees and acknowledges a voluntary waiver of rights and the provisions of California Code of Civil Procedure Sections 583.160, 583.310, 583.360, 583.410, 583.420 and all other provisions of California law regarding dismissal actions for failure to prosecute or to bring an action to trial within any time limit. 10. The parties hereto agree that a commissioner of the court may hear any proceeding arising out of this stipulation. 11. Defendant hereby acknowledges that they had the opportunity to consult with legal counsel of their legal rights with respect to the form and content of this stipulation and the advisability of executing it. 12. This stipulation may be signed in counterparts by the parties and their attorneys. Each counterpart shall be deemed an original.