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Found 16 results

  1. Hello, Can a lawyer please help me or give me advise. I am being sued by Midland Funding Group, and I had already responded with a General Denial Form. Along with that I sent their lawyer a Bill of Particular to respond to within 10 days. I had sent out the Bill of Particular towards the end of April and did not get a response back from them until recently (October). It had been 5 months until they got back to me, is this allowed? Can something be done, like for me to ask the judge to drop the case because of their response time? As well, they stated basically that what I had asked for was not relevant to the case (which is BS), and that their client was still investigating and is not ready for trial. I'm not really sure where to go from here, any advise would greatly be appreciated. Thanks so much!
  2. Hello, Can a lawyer please help me or give me advise. I am being sued by Midland Funding Group, and I had already responded with a General Denial Form. Along with that I sent their lawyer a Bill of Particular to respond to within 10 days. I had sent out the Bill of Particular towards the end of April and did not get a response back from them until recently (October). It had been 5 months until they got back to me, is this allowed? Can something be done, like for me to ask the judge to drop the case because of their response time? As well, they stated basically that what I had asked for was not relevant to the case (which is BS), and that their client was still investigating and is not ready for trial. Also, are they still allowed to contact me to collect debt since they are suing me. The other day I got a call from the lawyer, sent it straight to my voicemail, and in it they stated that this is an "attempt to collect a debt." Isn't this harassment since they are already suing me. Can I do something about this? I'm not really sure where to go from here, any advise would greatly be appreciated. Thanks so much!
  3. One last question re bill of particulars. I've read everything I can find on it here in the forum, but still have a question. I'm serving it with a proof of service. Do I: 1) send original pos to plaintiff or a copy of the pos to plaintiff; 2) send original demand for bill of particulars or a copy to the plaintiff? Thank you.
  4. Hello to the best forum on the planet! I was referred here by a friend and have been reading the awesome stories and advice given here. Tho I feel completely overwhelmed I have a glimmer of hope if I can get my head around all this stuff! I am taking this in chunks as it's the only way I can digest it all. Below are my answers to Racecar's questions. I have just a couple of questions for my first steps. I do believe I can file a General Denial (thanks AST Medic for that awesome thread)..but want to make sure my complaint is not verified. There is the first page of the summons; the complaint; exhibit; civil case coversheet (6 pages) with a signature by attny for Declaration of Assignment; and another signature on one of the civil case cover sheets that has Limited checked. Am I good with General Denial PLD-050? Should I have affirmative defenses? I don't have the good SOL to use but should I use Lack of Standing? I'm getting different views on that as I read this forum. Also I know the POS rules say a relative that's not involved in the case can sign, but want to make sure a spouse can sign. I'm just being crazy nuts on details sorry. Ok..hoping someone out there will read this…thanks in advance..here I go. Oh, and what is anyone's experience with Calvary/Winn Law Grp? 1. Who is the named plaintiff in the suit? Calvery SPV I, LLC (edit * I originally thought this was the 6th JDB but the past correspondences were from 5 different collection agencies of the OC, so I guess Calvary is the first JDB) 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Winn Law Grp 3. How much are you being sued for? Just under $5,000 4. Who is the original creditor? (if not the Plaintiff) Capital One Bank 5. How do you know you are being sued? (You were served, right?) Yes 6. How were you served? (Mail, In person, Notice on door) Left Summons on Porch 7. Was the service legal as required by your state? Not sure but hear this is how it happens alot...not worth fighting 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? California, Los Angeles 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Dec 2011 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). Suit served..have 30 days to answer 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 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 to respond; 1.Account Stated (in the body of the cause of action it says “account stated in writing) 2. Money Lent (on the bottom if the pages it says “Complaint for Common Counts” 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Exihibit “A” ~ 1 credit card statement w/ 2 small transactions and a payment..that’s it
  5. I downloaded the well referenced "Seadragon copy of Calawyers famous Bill of Particulars", but I'm wondering if that's all there is to it. It's just a page. Do I just fill in my name/plaintiff/case no/ and that's it? Or is there more to include specific to my case? For example, do I leave this passage as is with the brackets: "cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit]" or pick one? Will my bill of particulars need more research or will a basic copy of this with the party names included suffice?
  6. Hi, I have requested a BOP from Cach, LLC once with my response and they stated BOP is not applicable so I sent a second request with note that defendant, myself, will move to court for an order requiring a further response or, in the alternative, an order precluding plaintiff from offering any such evidence at trial. They responded: In light of the foregoing, please be advised that we will not provide further responses to your request; however, Plaintiff will provide all available documentation in response to the discovery propounded pursuant to the Civil Discovery Act. Three questions: #1 Since the cause of action is "Breach of Contract" and "Account Stated" should I file for a MTC BOP? #2 I received their Discovery executed on May 3rd 2013 but have not answered yet or sent my own Discovery to them. What would you suggest my next move be? #3 I was recently diagnosed with a very rare disease Idiopathic Intracranial Hypertension (pressure in brain with unknown cause or cure) causing me much pain, seizures and vision problems. Might be needing a surgery and all of this is just to much to handle at once. Do I have any rights to put this lawsuit on hold pending my health crisis? Much help needed to keep the fight in me against CACH, LLC. Thanks!
  7. I recently mailed out my BOP to JDB, Answer has been filed with court. Responses to Plaintiffs Request to produce documents, interrogatories and admissions have all been responded to. Should I wait for them to reply to the BOP before requesting anything from them? Also can anyone explain what this means " OSC VACATED - RESPONSIVE PLEADING FILED; CASE SET FOR CMR"
  8. Have been poring over the site for several days, yet can't seem to find the answer to this. Am being sued for Breach of Contract and Common Counts in California. Currently preparing a demand for BoP using this sample found in another thread. It was noted that the following text areas are intended to be edited as fitting: [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit]. My question: is retaining only "goods sold and delivered" sufficient for my the demand ("setting forth all items and details of the account on which the cause of action for goods sold and delivered of plaintiff’s complaint is based")? Or should it be: "goods sold and delivered, money had and received, and money lent or paid..." I know it's a pedantic question, but I don't want to make a rookie mistake that might blow back on me later. Thank you.
  9. I just recently sent a last minute BOP (7/26/13 they received 7/30/13) and received a response of "Our Office received your Demand for Bill of Particulars dated July 26, 2013. Per CCP 2024.40(a), your request is untimely and therefore no response will be provided . Please note, Plaintiff did supply 117 pages of billing statements in response for your request for production of documents on November 30, 2012. " I am sending them a meet and confer notice stating " On July 26th, 2013, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof. " As described below, plaintiffs’ response is entirely deficient. Plaintiff has not provided an itemization of the account showing all items and details of the account on which the cause of action for unjust enrichment by goods sold and delivered, money had and received, and /or money lent or paid of 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 item, and all payments or credits that have been made to the account including details of interest calculation or fees charged at issue in this litigation. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit. Please serve a full response on or before August 9, 2013. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order-precluding Plaintiff from offering any such evidence at trial." Problem is that my trial date is August 12, 2013. Background of my case is as follows: 1. Who is the named plaintiff in the suit? Capital One Bank (USA), N.A. 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Michael Boulanger, ESQ Law Offices of Patenaude & Felix, A.P.C. 3. How much are you being sued for? $2882.29 4. Cause of Action: Common Counts " because an account was stated in action between plantiff and defendant in which it was agreed that defendant was indebted to plaintiff." "This cause of action is based upon account number XXX for the sum by which Defendant has been unjustly enriched by virtue of Defendant and/or accepting benefits bestowed. It is inequitable for defendant to retain said benefits without repaying Plaintiff the value thereof." 5. How do you know you are being sued? (You were served, right?) Serviced at my front door 6. How were you served? (Mail, In person, Notice on door) In Person 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? They may have sent notice however I was in the process of changing addresses and do not recall a letter, received summons at new address. 9. What state and county do you live in? San Joaquin County, CA 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 7/4/2011 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). Court date for 8/12/13 at Superior Court of CA, County of San Joaquin I filed/sent an Answer, Request for production of documents (12 Items) which they sent Credit card statements back to Aug 2008 (it had a beg bal of $2,642.92 at that time) and a Customer Agreement Copyrighted 2010, Case Management Statement (12/3/12), Bill of Particulars (7/26/13), going to send Meet & Confer (8/5/2013), I have not a trial brief. They Sent Summons 5/11/12, CMS, Production of Docs 11/30/12, Meet & Confer 7/30/13 (regarding BOP), Trial Notice 7/8/13. Need advice on Filing motion to Precluding Plaintiff from offering any such evidence at trial (not sure if filing it on 8/9/13 is ok), Also trial prep and defenses for account stated.
  10. Hello, I'm currently in the process of helping my sister fight a lawsuit brought against her by PORTFOLIO RECOVERY. The original creditor was G.E. Money. We’ve already gotten through the process of filing an answer, responding to the interrogatories, and serving them with a Bill of Particulars. The question I have is regarding their response to the Bill of Particulars. The following is portion of the letter that was sent to my sister. [Pursuant to Ca Civ. Proc. 454: A demand for bill of particulars may be served on the plaintiff only in an action on "an account." 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 which the earlier accounts were based: i.e., there is nothing left to itemize] Any help with interpreting this reply to her BOP and what her next move should be would be greatly appreciated. Thank You
  11. Hey All... So I've been sued by a JDB and my original trial date was in late fall of 2012. I was unaware of this site so I did not have a strong urge to fight tho' I did answer the Complaint with denials and in retrospect an affirmative defense that is technically not "allowed". I had no idea what credit card the JDB was referring to but suspected it might be one that was covered under a Bankruptcy that I filed a year ago. So my one affirmative response was that the card was covered under the Federal Bankruptcy. I realize now that is not an actual "affirmative defense" under the CA Civil Code. right? I really was sideswiped by a flurry of life emergencies and never followed my answer with any BOP, or Discovery or anything. I wrote the Court a letter asking for a Continuance as well as sending a copy of that letter to the JDB. Amazingly the paralegal at the JDB's office was accommodating and said they were fine with moving the Court date up. As it turns out the Court itself had Continued the case and set a Court Date for this summer already! Before I even had sent the letter to the Court asking for the Continuance! Neither the JDB or myself were ever notified of this. So here we are with the new Court date in the summer. Soooo...my question is..do the timelines of all the Motions etc.. apply as if the continued date is my intial date..or have I lost my ability to in essence fight my case because I've past the deadlines for the original Court date which was in the fall of 2012. I have actually sent out a BOP (after reading this incredible wealth of info on this site)...and waiting for a response. I have read the CA Civil Code of Civil Procedure and frankly I don't quite understand it..tho' I'm not sure I know how to accurately interpret it anyway..Below is a portion that I was perusing.. 2024.020. (a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. ( Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings. 2024.030. Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to a witness identified under Chapter 18 (commencing with Section 2034.010) on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action. If anyone has any answers I would be so so appreciative!!
  12. I filed to have a motion to compel bop (or preclude as Calawyer explained I should do and I did) and it is SOON- I'm wondering what to expect during the hearing. A little background info: 1) I'm in CA 2) a tentative ruling will be posted the day prior to the date 3) I have rec'd the plaintiff's opposition to the motion 4)Im in the process of writing up my reply What happens if am granted my motion to compel? or the motion to preclude? What happens if it is denied? Do I go to court the next day regardless? I'm afraid not to go so I'm pretty sure I will go either way.....just looking for a little insight. Thanks in advance!!
  13. 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.
  14. As the title states, H&H has been trying to serve me for the past week and a half. Through pure luck, I have never been home when they tried to serve me. We live in a gated community and they need to get buzzed in before they would be able to serve me. That said, they were able to get through once 14 days ago and contacted my SO. SO said the server was looking for me; server would not give SO the documents, nor would they tell SO what the documents were about. I have not yet looked up the case online to see if they have actually filed anything. What should I/can I do to prepare myself? I messed up bad and did not request debt validation (a mistake I will never make again). They mailed me the 30 day letter end of July. The balance is ~7k, OC is CITI. Based on my research, my time RIGHT NOW should be spent writing a response to the complaint. AFTER I answer the complaint, I should do the following: Thoughts/Comments?
  15. 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??!!
  16. Giving a shoutout to Jespercorp who initially saw the post I asked about the Bop/Demurrer and implimented it, and took his plantiffs for a year long ride in the BOP/Demurrer washing machine. Man that was epic. All hail Jespercorp First implementor of the strategy. Recently I helped a friend with the BOP/ Demurrer strategy. It was ultimately overruled because of the common counts. A demurrer usually is not a defense against common counts but if the claims are too vague and they don't amplify with a response for BOP, then I am thinking with no facts alleged that the demurrer could possibly be sustained but it has mixed results based on the judge. Lets discuss the demurrer and really break it down. We all know CCP454 but if we send it out as soon as we are served we can start the clock. The BOP in the strategy makes them rush to get stuff which they might not have, which is the reason they sued under such vague things. when they fail to answer then you just Go with a motion to preclude. When the friend did the meet and confer they abused it and I now believe that she would have possibly gotten a better result just waiting 15 days from the day they get it. and springing the trap. The nice approach only gives them more time to submit something untimely. "The rationale of the requirement of our code system of pleading that a bill of particulars be furnished upon demand in connection with litigation concerning accounts is that such a bill of particulars amplifies the pleadings to which it relates in the nature of a more specific allegation of the facts claimed to exist." It has also been said that the purpose of a bill of particulars is to apprise the defendant of the details of the plaintiff's claim in order that the defendant may intelligently present his defenses.” (internal citations omitted) Dobbins v. Hardister, 242 Cal. App. 2d 787 (Cal. App. 1st Dist. 1966) The preclusion sets up the demurrer by limitting the proofs in the case. The court will not be able to take judicial notice of documents that are precluded. The demurrer is layed out in California Code of Civil Procedure Sec. 430.10. Here are some reasons why I believe it can be effective: It can give you time to get an attorney It can give you time to get up to speed to answer It could make them go away if they know you are narrowing their argument It costs them money up front How the courts define reasons for demurrer: If the Breach of contract is plead with the common counts then this is the reason a demurrer would be sustained. Rowley relies upon the rule that a common count may not be maintained as the alternative for specifically pleaded facts which do not in themselves state a cause of action. (Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 489 [110 P.2d 396]; Hays v. Temple, 23 Cal.App.2d 690, 695 [73 P.2d 1248].) Here lies a sticky point if they don't use the form and long form the complaint. In the parallel field of aider by reference, the averments of one count cannot be amplified by the allegations of another separately stated cause of action in the same pleading unless the latter are included by special reference or otherwise in the portion of the complaint under attack (Lord v. Garland, 27 Cal.2d 840 [168 P.2d 5]). Similarly, unless the alternate pleadings contain antagonistic statements, the statement of facts sufficient to constitute a cause of action in one count is not a bar to the maintenance of a separately stated count in the same pleading based upon inconsistent allegations. This argument may work if you already made a payment to the JDB. the doctrine of election of remedies is based upon the principle of estoppel. "Whenever a party entitled to enforce two remedies either institutes an action upon one of such remedies or performs any act in pursuit of such remedy, whereby he has gained any advantage over the other party, ... he will be held to have made an election of such remedy, and will not be entitled to pursue any other remedy for the enforcement of his right." (DeLaval Pac. Co. v. United C. & D. Co., 65 Cal.App. 584, 586 [224 P. 766].) The doctrine is well established (Ravizza v. Budd & Queen, Inc., 19 Cal.2d 289, 293 [120 P.2d 865]; Holt Manufacturing Co. v. Ewing, 109 Cal. 353, 356 [42 P. 435]; Parke etc. Co. v. White River L. Co., 101 Cal. 37, 41 [35 P. 442]; Smith v. Miller, 5 Cal.App.2d 564, 570 [43 P.2d 347]). This argument may not have panned out but could be fleshed out. The particularity with which a party must plead concerning an alleged “account” has already been well defined in this state and nationally. The generalized averment of an account is not sufficient to state a cause of action for which relief can be granted. Federal and California authorities all point towards the conclusion that this does not meet the standard of pleading of “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,127 S. Ct. 1955, 1974 (2007) because "" the fatal defect is the lack of an allegation of consideration furnished. In fact, such an allegation is impossible. The "consideration" is a fiction when the tort is waived, for there is no intent to give anything as an agreed exchange. But, in order to employ the fiction, there must be something moving to the defendant, to support the implied promise to pay therefor. In the instant case, there is nothing so moving in order for plaintiffs to waive the tort." Allen v. Powell 248 Cal. App. 2d 502 at pp.510. (Friends demurrer argument) As we can see the demurrers success rest solely with the judge who has irrebutable discretion to rule on this. This can be used as a gage to see the judges ruling style. Even if the demurrer is overuled you gain time to answer while the motion is pending on the crowded docket and the plaintiffs cannot propound discovery until 20 days after you answer so you eat into their time. You can then use the demurrer to extend the time for you to get your Motion to Preclude the giving of evidence ready. I believe it is a good strategy but you may use up some good will from the court. Thank you