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Found 213 results

  1. Good morning everyone! I would really appreciate help on this UNLIMITED CASE in California! THANK YOU so much, beforehand!! Here is the info on my case: -------------- 1. Who is the named plaintiff in the suit? ABSOLUTE RESOLUTIONS INVESTMENTS, LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) MANDARICH LAW GROUP, LLP 420 N. Wabash Ave, Suite 400 Chicago, IL 60611 3. How much are you being sued for? 25k and change 4. Who is the original creditor? (if not the Plaintiff) US BANK NATIONAL ASSOCIATION ND 60 Livingston Ave St. Paul, MN 55107 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 at home 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? None that I am aware of. 9. What state and county do you live in? CALIFORNIA, County of 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) Not 100% sure – they presented a CC statement with the complaint dated September 2017. 11. When did you open the account (looking to establish what card agreement may be applicable)? Unsure. But it is not a super old account. It is relatively recent (last 5 years perhaps). 12. What is the SOL on the debt? To find out: California. Written: 4 years, Oral: 2 years, Open Ended Accounts: 4 years. Statute of Limitations on Debts 13. 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). - Filed the answer with the court (personally, and on time, on day 30) this week. - Served plaintiff’s lawyers by mail the same day – CMRR - Case Management Conference has been set for the end of April, 2019. 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. 15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No. I had no warning I was going to be sued. 16. 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? Filed the answer personally, and on time, this week. 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Only two things: - Exhibit A: A copy of a Credit Card statement from Sept 2017. Guessing they're alleging that it's the "last payment"? - Exhibit B: A copy of a Credit Card statement from April 2018. Guessing they're alleging ths is the charge off? * THE ACCOUNT NUMBER PROVIDED IS ALL BLACKED OUT except for the "last four" numbers of the account. In the complaint itself the account is listed as "XXXXXXXX and last 4 numbers." 18. What are the causes of action listed in the complaint? First Cause (Account Stated) - Within past 4 years, an account was stated in writing in which it was agreed that defendant was indebted in the amount previously referenced herein. Although demand has been made upon defendant, said amount has not been paid, and is now due, owing and unpaid from defendant to plaintiff, as successor in interest. Second Cause (Open Book Account) - within past 4 years, defendant and each of them became indebted in the amount of the previously mentioned herein for a balance due on a book account for goods sold and delivered and/or services rendered by U.S. Bank National Association. Although demand has been made upon defendant, said amount has not been paid, and is now due, owing and unpaid including attorney's fees from defendant to plaintiff as successor in interest. 19. How did you find out about this site? Guess I am not necessarily a “newbie.” I won two lawsuits against JDBs about 10 years ago (one went in front of a judge, who ruled in my favor; the other one was dismissed by the rent-a-lawyer right before going in front of the judge). But, it has been a while, I’m sure things have changed a bit in the last 10-years, and this time around I am dealing with an UNLIMITED CASE. I had completely forgotten about this site until the night before I was to file my Answer this week – when I was double checking everything before filing it the next day. I remember how helpful everyone here was back then (I helped also). Since I am in new territory with this being my first UNLIMITED CASE, I want to make sure I have all my ducks in a row. I am SUPER RUSTY and it’s been a while, but I am 2-0, and definitely plan to make my record 3-0. A HUGE THANK YOU beforehand to everyone who is able to help me win this one! @LoveIsPower (this is a new account I created, since I can’t remember what my old one was)
  2. I initiated arbitration in PRA agreed, providing a document which turned into a court order. That is attached here. I filed with the court and provided a case number from AAA. The answer for the bill of particulars is due on March 28th. Should I answer it or file a new motion to dismiss improper venue/compel arbitration instead of an answer? I'm not sure if participating in this litigation would void the arbitration clause. Case is in Virginia.
  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. I'm (Defendant) being sued by the Plaintiff, the law firm my credit union hired, for an unsecured credit card debt around 25K in the State of Virginia. Plaintiff submitted Bill of Particulars with documentation: 1. Plaintiff is a federal credit union 2. Defendant is a natural person located at the above address 3. Defendant is indebted to the Plaintiff by virtue of failing to honor their payment obligations on a credit agreement, as is evidenced by the attached account statements. See copies off transaction summary, account application, account statement and terms and conditions attached as exhibits 1,2,3, and 4 respectively. 4. At the time of the filing this action the Defendants owed 25K to the Plaintiff 5. Despite demand of payment, the Defendants have failed to pa the above sums. How do I respond to this? They did provide the documentation. I'm trying to throw a hail Mary. Is there anything I request a dismal of this suit? Any ideas on what grounds? Again, they did provide the documentation. Can I go to the court house for the proper forms to answer this? I did reach out to the law firm and ask if they would consider a payment plan. $500 a month. They said they would but they would still purse a judgement against me. he only thing they'd take is 15K payment prior to the court date and then they would dismiss the suit. In the event that I get a judgement what are my odds of getting the judgement vacated after I settle the account. I know it's the courts that have the authority to remove judgement. Help. Jen
  5. Hey all Started new topic as my last post from a couple days back didn't get any replies. Could y'all check out my new ? at: http://www.creditinfocenter.com/community/topic/322787-notice-to-admit/ In summation, I am wondering about the ability to send a BOP and interrogs in NY. Since I hadn't heard anything and this is time-sensitive, I resent them my BOP (which they had returned to me, citing a rule which has to do with not being allowed to send a BOP and interrogs in NY, and I'd already sent interrogs), but changed the language from Bill of Particulars to Supplemental Interrogatories. Any feedback or knowledge of if they were right in invoking the statute which bars interrogatories and a bill of particulars? I (I guess) misinterpreted it to mean can't send both at the same time/within the same period before one is complete. Anyone? THANKS!!
  6. Background: UNIFUND filed a suit in Jan 2013 against me. They sent their Discovery Nov 20, 2013. I have a few days left to send off my responses. Status IS: 1. BOP sent (11-4-13) They ignored all requests but sent 4 statements. ( What is the recourse? Does Judge really even care?) 3. Plaintiff's RFD asked me for exactly what I asked from them in the BOP. 4. Plaintiff's RFA's I have seen no proof they have anything tying me to this account, but don't want to deny everything if they somehow do. Should I be more ambiguous with denials? Their lawyers have shown me zip other than a few statements. I am fighting blind. I have left many messages to discuss the case. I also disputed via Lexington Law all my credit card accounts in 2009-2010 and have sent off a request to Lexington Law to see they can give me proof that the credit card I am being sued for was something I disputed right when it first went into default. What I want is to know how to word things so it's not a lie if other evidence comes out AND to make them participate in Discovery! Thanks in advance. P.s. I'll get UNIFUND's RFA and RFD scanned in to see those as well, but they pretty much say admit this is our account, that I opened an account, went into default etc. Answer to Disvcovery-sample.doc Bill of Particulars-sample.docx Answer to Unifund-Sample.docx Admissions-sample.doc
  7. Sent the below the Bill Of Particulars in California: Background: Verified complaint from Unifund in California Kenosian & Miele Served 9 months after the complaint was filed. I answered. DEMAND FOR BILL OF PARTICULARS To PLAINTIFF UNIFUND, CCR, LLP, and its attorneys of record herein: DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to the Defendant ­­­­­­­­­­­­­­­­­­­­________________within 10 days, a Bill of Particulars setting forth the following items and details of the alleged account. Defendant requests the following: As stated to be true and verifiable in Plaintiff’s Complaint: Starting on or about the date of 6/16/06 and continuing till the Defendant’s alleged Breach of the alleged Card Holder Agreement on or about 11-22-09, furnish all account statements, approximately 41 of the alleged account to the Defendant. Furnish proof that the Defendant made payments on this alleged account. Furnish a Copy of the originating Contract between Citibank and Defendant for the alleged account. Furnish a copy of the written card holder agreement Plaintiff alleges the Defendant breached, and any and all amendments to the alleged contract between Defendant and Citibank for the date range stated in Plaintiff’s Complaint, starting from the opening of the alleged account, to the alleged date of the breach of the contract of the alleged cardholder agreement Furnish proof the Plaintiff owns the alleged account including all rights, title, and interest in the obligation by which this suit is brought and that Plaintiff is the sole owner of the alleged account. Furnish the calculation(s), breakdown, and means by which the Plaintiff determined the Damages owed of $ 13, 811.99. State the amount of the interest Plaintiff claims they are owed and furnish the calculation(s), breakdown, and means by which the Plaintiff determines the interest owed from and after 5-25-10. Furnish proof of entitlement to Attorney’s Fees, and Costs of Suit under the alleged contract between Citibank and Defendant and/or Citibank and the Plaintiff. Dated: 11/4/13 --They sent 3 months of statement from august 2009 to nov 2009. Nothing else and it was NOT VERIFIED, which I belive it needed to be. Is there any legal recourse for this? THEN... They immediately sent a RFD with more CC statements from 2008 to 2009 and asked me for the very things I was asking from them in my BOP. That's why this upsets me. It's a game they are playing. They are asking for: All copies of statements of the account. (don’t have any but what they have provided me) All documents relating to identity theft allegations. Since date they state I opened the account through present. ( don’t have any in that time period) All payments made to original OC from date they state I opened the account through present. ( don’t have any, but the statements they sent to me shows somebody made an electronic payment to Citibank--not me, but somebody) All correspondence with OC from date they state I opened the account through present. ( I called Citibank a few weeks ago because the JDB lawyers refused to speak to me about the case. 3 departments in Citibank stated they had no record of this account or of it ever existing.) Too, the account does not show up on my credit report either. However, I do not deny that this account could have been sold to UNIFUND and that somebody at Citibank has a record of that--maybe in their sold accounts/archive section. All correspondences between me and credit report agencies from date they state I opened the account through present. (I disputed all my accounts for a few months through Lexington Law during 2009 and stopped in a few months. But I have no way of showing that. Lexington Law has no record of that now since I do not have an account with them anymore. This request is a waste of my time and energy. Unifund's lawyers need to do their own legal work. I have a job and can’t afford to act as their paralegal). All documents that the account from Citibank was paid in full (Have none.) All documents relating to this old Citibank account (This is ridiculous. I claimed this account was not mine to them and still they persist) Admissions Admit I applied for the card. ( they have no proof I did. If I did, it might have been over the phone. So no proof on their part) Admit I received the credit card( they have no proof I did) Admit I made payments (they have no proof I did. Somebody paid online. No proof it was me or that I ever made one payment on this account) Admit I became delinquent. ( No proof this is even my account) Admit I left a balance. ( No proof this is even my account) Admit I received statements ( No proof this is even my account) Admit balanced due is what they say ( I have no idea what they say is true. Ridiculous.) Admit they own the account now. (How would I know? Total nonsense) P.s. I have to complete my responses no later than tomorrow. I bought some defendant packages to help me but they are not from California. Any templates for the appropriate required legal language in California I need to have in my response mailed back to the Plaintiff to answer their RFD and Admissions? That which could be copied and pasted onto court pleading paper and then I fill into the body what is relevant to my case? Thank You.
  8. A bit of history July 5- BOP sent....failed to respond to BOP July 30- meet/confer letter sent...responded with only 3 mos worth of statements. August 13- 2nd meet/confer letter sent...no response here is what Ive come up with using samples here on this forum. Please review..and critique..thanks DISCOVER BANK, Plaintiff, vs. Defendant ) NOTICE OF MOTION AND MOTION TO COMPEL BILL OF PARTICULARS DATE: TIME: DEPT: TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on or as soon thereafter as may be heard in Department xx of the above-entitled court, located at , defendant, (“Propounding Party”) will, and hereby does, move this court for an order, compelling Plaintiff Discover Bank, (“Responding Party”) to respond fully to Defendant’s Bill of Particulars or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. The motion is made pursuant to Code of Civil Procedure section 454 on the ground that Plaintiff has refused to respond to Defendant’s demand for a Bill of Particulars and good cause exists for the relief requested in this motion. This motion is based upon this Notice, the Memorandum of Points and Authorities in support hereof, the Declaration of xxx in support hereof, the documentary evidence in support hereof, the papers and records on file herein, and such evidence as may be presented at the hearing. DATED: MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On June 21, 2012, plaintiff filed its complaint against the defendant in this matter. On July 1, 2012, plaintiff served defendant, by leaving a copy of the summons and complaint with defendant’s wife at residence. The complaint alleges that defendant owes plaintiff the sum of $xxxx pursuant to an agreement between defendant and Discover Bank. No such agreement is attached to the complaint. The complaint sets forth no facts supporting the amount claimed to be owed. For this reason, on July 5, 2012, defendant served a request for Bill of Particulars on plaintiff (Exhibit A). Plaintiff failed to respond. On July 30, 2012, defendant sent a meet and confer letter to plaintiff requesting Bill of Particulars (Exhibit . Plaintiff responded with a letter dated August 6, 2012 (Exhibit C). The response served however is not sufficient. No contract has been produced. Nor has plaintiff produced all account statements justifying the amount claimed to be owed in the complaint. On August 13, 2012, defendant sent his second meet and confer letter to plaintiff, requesting a full response to Bill of Particulars (Exhibit D). No additional response has been received by defendant. Defendant therefore asks that this Court order plaintiff to supplement its Bill of Particulars producing a complete accounting, including an itemization of the account showing all charges and credits thereto, a copy of the contract referred to in the complaint and a copy of any agreement assigning this claim to plaintiff. In the alternative, defendant asks that the Court enter an order precluding plaintiff from offering any such evidence at the trial of this matter. II. ARGUMENT Code of Civil Procedure section 454 governs the use of a Bill of Particulars in California. Pursuant to this section, a plaintiff need not detail all items of an account in the complaint. However, upon request, plaintiff must provide all such information within 10 days or be precluded from giving evidence thereof at trial: "It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular." Here, defendant served a request for a Bill of Particulars on July 5, 2012. Defendant asked for a bill of particulars setting forth the items and details of the account on which the cause of action for goods sold and delivered of plaintiff’s complaint is based, including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered; and the price or charge made for each such item or transaction. Plaintiff failed to respond. On July 30, 2012, defendant sent a meet and confer letter requesting Bill of Particulars. Plaintiff’s response was wholly deficient. It did not provide a contract, itemized details of the account on which the cause of action for goods sold and delivered including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered; and the price or charge made for each such item or transaction. On August 13, 2012, defendant sent a second meet and confer letter requesting a full response to Bill of Particulars. Plaintiff hasn’t responded to second meet and confer letter. Defendant’s efforts to meet and confer to avoid the necessity of bringing this motion were futile. The information requested in Defendant’s Bill of Particulars is the bare minimum that plaintiff will need to prove its case at trial. Plaintiff should have had this information in its possession before filing suit. There is simply no reason that it should not be produced in response to a properly served Request for Bill of Particulars. The Court should require plaintiff to do so immediately. III CONCLUSION Plaintiff’s response to defendant’s Bill of Particulars is inadequate. The Court should require plaintiff to supplement its response immediately and produce all statements pertaining to this account from inception showing all payments made and charges to the account at issue. In addition, plaintiff should produce the contract referred to in the complaint and any agreement assigning the claims at issue to the plaintiff. In the alternative, the Court should enter an order pursuant to Code of Civil Procedure section 454 precluding the plaintiff from offering any such evidence at trial. DECLARATION IN SUPPORT OF MOTION TO COMPEL BILL OF PARTICULARS I, xxx declare as follows: I am the defendant in the above titled matter. I have personal knowledge of all the facts contained herein, and if called to testify, could and would testify competently thereto. 1. Defendant served his Demand for Bill of Particular by U.S. Mail to Plaintiff's attorney, Harris and Zide, on July 5, 2012. Plaintiff failed to respond. A copy of the Demand for Bill of Particulars and Proof of Service is attached hereto as Exhibit A. 2. On July 30, 2012, defendant sent his 1st meet and confer letter to plaintiff. Copy of this letter is attached hereto as Exhibit B. Plaintiff’s response to this request was incomplete and insufficient. A copy of plaintiff’s response is attached hereto as Exhibit C. 3. On August 13, 2012, Defendant sent a 2nd meet and confer letter to Plaintiff's attorney Harris and Zide observing that plaintiff’s response was incomplete and insufficient and requesting that Plaintiff provide a full response. A copy of this letter is attached as Exhibit D. 4. As of August 30, 2012, plaintiff has refused to fully respond to the request for Bill of Particulars. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
  9. 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.
  10. Need advice on best way to beat or discredit an Affidavit or Declaration from a creditor in an unlimited jurisdiction case. I am currently in the discovery phase of California unlimited jurisdiction case (over $25,000) against an original creditor. I have beat lawsuits by original creditors and junk debt buyers in limited jurisdiction cases before, but this is my first unlimited case. After doing quite a bit of research on this website and others across the internet, I have found it very difficult to get information on which California codes (CCP) apply to limited vs unlimited jurisdiction cases. Specifically as it relates to Affidavits or Declarations made by the creditor. Typically, in a California limited jurisdiction case I follow this general process used by many CIC members on this site. They include: 1)Answer Complaint 2)Send Bill of Particulars 3)Various types of Discovery- 35 max CCP §§94-95 4)Motions if required 5)Request Witness List, CCP §96(a) 6)Subpoena Witness after receiving Affidavit in Lieu of Testimony, CCP §98 7)Motion in Limine 8)Trial, maybe or maybe not witness shows up. Its a simple process and it works very well but you need but you need limited jurisdiction codes to do it. Common California Codes used only in Limited Jurisdiction Cases: CCP §§94-95 , limits on Discovery allowed only to the extent permitted which max out Discovery requests at 35 interrogatories, production of documents and admissions CCP §96(a), Either party may serve a request for disclosure of witnesses who will be called, and documents, photographs, and other evidence that will be offered at trial. . Make the request on the mandatory Judicial Council form, Request for Statement of Witnesses and Evidence—For Limited Civil Cases (Under $25,000) (Judicial Council Form DISC-015). CCP §98, A party may, in lieu of presenting direct testimony, offer the prepared testimony of witnesses in the form of affidavits or declarations under penalty of perjury. Since the process mentioned above really can't be done in an unlimited jurisdiction case because the codes are not available, I am not sure the best way to fight the case through normal discovery. Especially as it relates to affidavits or declarations. Since I cannot get the witness list through CCP 96, could I possibly get it through discovery using CODE OF CIVIL PROCEDURE SECTION 2034.210-2034.310. Requires a witness list during discovery 70 days before trial. Anyone know of any other way to get a witness let using another code or strategy? Under CCP 98 my understanding is that a Affidavit in Lieu of Testimony is not admissible in unlimited jurisdiction and is therefore considered hearsay. Because of this it seems there is no need to Subpoena the declarant to come to court because really I don't want them to show up anyway. It would be better just to see if they have a witness stated on a witness list, and this witness works for the original creditor. Especially since there are costs associated with getting a subpoena witness to Trial. Plus I am not even sure how to subpoena someone in another state. It seems it would be better to just prepare for cross examination of this witness at trial. If for some reason I still wanted a person to show for trial (likely located in another state) would subpoena SUBP-001 and SUBP-002 still apply per CCP 1985 & 1987 in an unlimited jurisdiction case? Also, I have also noticed that some courts like Orange County and Santa Clara (maybe others) require other rules in unlimited jurisdiction cases. Things such as joints statements between plaintiff and defendant lawyer for Case Management Conference instead of just filing out CM-110. Joint production is also required for the Pre-Trial Statement and a Joint Witness List. Has anyone actually had to do these in a unlimited case or know the process for working these documents out with the Plaintiff's lawyer? Any help would be appreciated.
  11. Hello, I’m preparing responses to plaintiff T**g*t NatBk’s discovery and need feedback on whether I’m offering my head on a platter, or triggering a motion to compel with sanctions. I had some help from legal aid and they were concerned that my responses should have as much statutory wording as possible. They said if the other side decides to push back, they could file a motion to compel with sanctions. I’ve never seen this happen in the seven years’ worth of timelines on the court website, but perhaps there could always be a first time. Actually, the case has been ordered to arbitration but my research shows that discovery may continue in the meantime, including discovery motions. I’m thinking that if the file a motion against me, I can do the same with them, but that’s another issue. Here’s my timeline so far: 12-29-11 Complaint filed by T**g*t NatBk at local superior court. 1-09-12 Complaint served by substituted service; Common Counts/Other/CC(1)(a)(2)causes of action within the last 4 years “because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.” AND CC(1)((6) “This cause of action is based upon account number XXXXXXXXXXXXXXXX for the sum by Which Defendant has been unjustly enriched by virtue of Defendant receiving monetary or other benefit, by Defendant knowingly requesting the funds at issue and/or accepting the benefits bestowed. It is inequitable for Defendant to retain said benefits without repaying Plaintiff the value thereof.” CC-2 $4228.29. 2-09-12 Defendant filed General Denial: 1. Plaintiff fails to state a claim upon which relief may be granted. 2. Plaintiff fails to state facts sufficient to constitute any cause of action against Defendant. 3. Plaintiff's claims are barred by the Statute of Limitations. CCP Section 337, 340. 4. Plaintiff failed to mitigate damages. 5. Plaintiff's claims are barred by unclean hands. 6. Plaintiff's claims are barred by waiver and/or estoppel. 7. Plaintiff's claims are barred by laches. 8. Defendant is entitled to set-off for payments already made. 9. Defendant expressly and specifically reserves the right to amend this answer to add, delete and/or modify defenses based upon legal theories, facts and circumstances which may or will be divulged through discovery and/or further legal analysis of Plaintiff's position in this litigation. Defendant also filed Bill of Particulars asking for the following: a. Copy of the instrument upon which the alleged account is based, i.e., contract. b. The date of each transaction. c. A description of the services, materials or goods supplied or other considerations rendered. d. The price or charge made for each item. e. All payments or credits that have been made to the account. f. ITEMIZATION of the account from ZERO balance; including all debits and credits against the alleged account, including interest rates per transaction, dates of transactions. g. Any modifications to terms and conditions over course of the account. h. A copy of any contract from Target National Bank giving Pantdude & Co. the right to collect the alleged debt including any consideration paid therefore. 2-27-12 Pltf served Response to BOP (objections, no production) NOTE: Pltf denies applicability of BOP; states defendant “is strictly limited to Unjust Enrichment Cause of Action.” Cites Caruso v. Snap Tite, Inc. Pltf then states “The complaint is based on an quantum meruit, and an account stated and Defendant’s breach thereon in the principal amount of $4,228.29. True and correct copies of the statements will be furnished to Defendant as they become available. Plaintiff reserves the right to produce more billing statements as they become available or produce them at trial.” ]4-5-12 Served discovery on Plaintiff. 4-13-12 Pltf served Supplemental Response to BOP (attached Exh 1 – 134 pgs) (dated 4-13-12 no signature, no proof of service, postmarked 4-16-12). Pltf basically repeats the first Response, including quantum meruit and account stated, and states: “True and correct copies of the statements are attached hereto as “Exhibit 1.” Plaintiff reserves the right to produce more billing statements as they become available or produce them at trial.” The unauthenticated statements have missing months and cover the period from Dec. 2005 through Sept. 2011. 4-20-12 Faxed meet-and-confer letter to plaintiff’s counsel in San Diego re filing motion to compel further respsonses to Bill of Particulars. 4-21-12 Rec’d Discovery Requests from plaintiff’s counsel, served 4-18-12, due 5-23-12. 4-22-12 Voicemail from plaintiff’s counsel asking for a call back, saying “ “it’s important that we meet and confer.” 4-26-12 Pltf re-mailed Exh 1 claiming “This office has provided all documents within its client’s possession custody and control in March of 2012 in response to your initial request. Unfortunately our client no longer has possession and control of the original application as it has been lost or misplaced.” 5-3-12 Called plaintiff’s counsel requesting extension to respond to Discovery (served 4-18-12 and due 5-23-12) due to converging issues and deadlines. Extension granted; defendant faxed and mailed confirming letter. 5-7-12 Rec’d Rsps to my discovery which was served 5-4-12 (deadline to serve MTC is 45 days after 5-4-12, plus 5 days for mailing - 6-23-12 Saturday, thus 6-25-12 Monday). Plaintiff verifications are by infamous robosigner, who is listed on Linked In as an employee of plaintiff’s parent corporation since 1999. How could he be an employee of plaintiff, the subsidiary corporation?
  12. I saw another post similar to this but I could not find an answer as the topic never was updated with results. So yesterday i receive a call from a gal working at the law group, she verified some information (ie, my name and address) then proceeded to ask if i would like to settle this matter out of court. I mentioned that i sent an answer to summons and also a demand for BOP last week that i was waiting for a response in writing before i would proceed any further, after putting me on hold for 3-4 minutes to "check on the papers" she returned and quickly got off the phone and left with, give us a call back if you change your mind." I received a letter today from Mandari$H LAw GRoup reading: This is what my Summon I received, looks like : ===================================================== SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES-LIMITED JURISDICTION CASE NO: XXXXXXXX COMPLAINT FOR: 1. BREACH OF CONTRACT 2. COMMON COUNTS FACTS COMMON TO ALL CAUSES OF ACTION 1. xxxxx 2. xxxxx FIRST CAUSE OF ACTION (Breach of Contract) 1. xxxxx 2. xxxxx SECOND CAUSE OF ACTION(Account Stated) 1. xxxxx 2. xxxxx ======================================================= SO THIS IS MY QUESTION, WHERE DO I GO FROM HERE? i found this on another topic, is the letter quoted below the right letter to send? (a second demand for BOP?) Do I send another demand for BOP TOGETHER OR SEPARATE with REquest for Docs, as mentioned in this topic..? (http://www.creditinfocenter.com/community/topic/311930-another-cach-lawsuit-in-ca-need-a-lot-of-help/page-2?hl=distefano#entry1151485)
  13. I’m being sued by Portfolio Recovery Associates in California. Thank you to all the people on this forum. Everything has been really helpful so far. I plan to post copies of my summons, answer, etc. next for review in case it makes it easier for some. 1. Who is the named plaintiff in the suit? PORTFOLIO RECOVERY ASSOCIATES 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) HUNT & HENRIQUES, Attorneys at Law 3. How much are you being sued for? $4,000+ 4. Who is the original creditor? (if not the Plaintiff) HSBC BANK NEVADA, N.A. 5. How do you know you are being sued? (You were served, right?) Yes, served. 6. How were you served? (Mail, In person, Notice on door) Served in person at home. 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? None. 9. What state and county do you live in? California, Los Angeles County 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Cannot determine this, there is not an account number listed. 11. What is the SOL on the debt? To find out: 4 years being in California 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). Here is a copy and paste from online inquiry from lasuperiorcourt. org, ----------------- Case Number: ** PORTFOLIO RECOVERY ASSOCIATES LLC VS ** Filing Date: 05/14/2012 Case Type: COLLECTION CASE (Limited Jurisdiction) Filing Court: Stanley Mosk Courthouse Status: Pending ----------------- Future Hearings 11/15/2012 at xx AM in department 77 at 110 North Grand Ave., Los Angeles, CA 90012 ORDER TO SHOW CAUSE ----------------- History Information Parties Plaintiff: PORTFOLIO RECOVERY ASSOCIATES LLC Attorney: HUNT & HENRIQUES Defendant: ** Attorney: None ----------------- Party Information Histories ( Dates listed in descending order) 05/22/2012 PROOF OF SERVICE TO COMPLAINT FILED 05/15/2012 OSC SET 11/15/12, ** AM, DEPT. 77, NOTICE FILED & MAILED 05/14/2012 COMPLAINT FILED - COLLECTION CASE 05/14/2012 SUMMONS FILED ----------------- 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 from 5/19/12 (date served). States indebted to Plaintiff’s predecessor. There was no questionnaire attached. Please see my scan of my all documents I was served with in the next post. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. I do not see an evidence page, affidavit, statement, or contract. Here is all listed in order. Page 1. Summons Pages 2-3. Complaint Page 4. Cause of Action Page 5. Statement of Location/Venue Page 6-7. Civil Case Cover sheet Page 8-11. Civil Case Cover Sheet Addendum and Statement of Location Page 12. Notice of Case Procedures & Requirements After reading through this great forum, this is my plan of action: 1. I’m assuming I will be answering with a general denial with form PLD-C-010. From what I read here I will not be listing any Affirmative Defenses. I do not see any verification in the summons. 2. Before I file the Answer with the Clerk, I will serve a copy of this answer to the Plaintiff’s attorney by mail by having a friend help me (serve) with form POS-030. 3. One copy of the Answer and POS for both filing and for the attorney. 4. File a Bill of Particulars. I will attach an example copy in a follow up post. Some other questions please: 1. I noticed in checking my status online that a PROOF OF SERVICE TO COMPLAINT has been filed after being served. How do I see this document? Maybe they mail it to me? 2. The BOP is served only with the Plaintiff’s attorney? Or filed with the Clerk with the Answer at the same time? 3. Any other forms and advice would be greatly appreciated. I’m confused if this is “account stated” type of complaint. If so, do I have to pursue a different course of action than above? 4. Chapter 13 could be an option for me. It is too late since I’m been sued? I rather not, if I can fight this suit off myself. Apologies for any ignorance and thanks again for any feedback.
  14. There are many differences between a Bill of Particulars (BOP) and written discovery in California but one important one is often ignored: the motion to compel. Because this makes a real difference to debt collection defendants and they often don’t understand it until it is too late, I thought it would be useful to start this post. Frequently, any discovery you serve on the plaintiff will be met by objections. To get adequate responses you will need to file a motion to compel. There are two major differences between a motion to compel a BOP and a motion to compel written discovery: deadlines and the separate statement. A motion to compel written discovery must be filed within 45 days of service of responses to interrogatories (CCP 2030.300 3 c), demands for production of documents (CCP 2031.310 3 c), and requests for admissions (CCP 2033.290 2 c). The parties can agree to extend that time (which must be confirmed in a writing) but practically, the plaintiff won’t grant an extension unless your meet and confer efforts result in plaintiff’s agreement to supplement some of its responses. If you do not file a motion to compel by the deadline (or the extended deadline), you waive your right to do so. In contrast, CCP section 454 contains no deadline for filing a motion. You can file one immediately, wait a few months, or even wait until trial and argue preclusion (depending upon your tolerance for risk). In addition, a motion to compel written discovery must be accompanied by a declaration showing that you made a good faith effort to meet and confer with the plaintiff in an effort to resolve the issues informally. CCP section 454 imposes no similar requirement for a motion for a further response to a BOP. I strongly suggest that you write meet and confer letters before filing a motion to compel a further BOP, but there is no such requirement in CCP 454. The biggest difference between the two motions, however, is the separate statement. Under California Rule of Court 3.1345, a motion to compel further responses to interrogatories, document requests and requests for admissions must be accompanied by a separate statement. Generally, this means a lot of typing. You have to set forth each request, the response, and a reason why a further response should be compelled. Here is the actual text of the rule: A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include-for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested-the following: (1) The text of the request, interrogatory, question, or inspection demand; (2) The text of each response, answer, or objection, and any further responses or answers; (3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute; (4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it; (5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and (6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document. Bottom line: Filing any motion to compel is a lot of work. You will need to prepare a notice of motion, a memorandum of points and authorities and a declaration. But the separate statement is difficult to prepare, especially when you have a lot of responses. If you need information not available through a BOP, don’t propound Rogs, RFAs and RFPs asking for everything under the sun or you will be sorry when it comes time to prepare the separate statement and you have a deadline looming. If you need written discovery, consider propounding a small number of very specific RFPs first and maybe follow up with additional discovery afterwards. If you feel you need much more, consider staggering your requests so that your motions to compel are not all due on the same day.
  15. I got a response from Plaintiff's Counsel denying my BOP demand on the following grounds: OBJECTION: A BIll of Particulars is not appropriate in an action alleging an "account stated" since the items upon which an account is based are deemed merged and there is nothing left to itemize (See Ahlbin v. Crescent Commercial Corp. (1950) 100 Cal.App.2d 646, 648). Accordingly, Plaintiff is not required to respond to Defendant's demand. (See Distenfano v Hall (1963) 218 Cal .App. 2d 657, 677). OBJECTION: In addition, a bill of particulars is "not applicable to a contract or a promisory note which has an account for its consideration." (Distenfano v Hall (1963) 218 Cal.App. 2d 657, 677) And in cases which fit the aformentioned circumstances, "a demand for a bll of particulars [is] not proper and [the recipient] [is] justified in ignoring such demand" (Id. at 678). Accordingly, Plaintiff is not required to respond to Defendant's demand. OBJECTION: A Bill of Particulars is not the proper method by which a "description of all services, materials or goods supplied, or other considerations rendered" is to be obtained. First of all, this request requires the creation of documentation and narrative answer - neither of which are appropriate in response to a Bill of Particulars. All that is required in a response to a Bill of Particulars are ther "items of an account" or a "copy of an account" as defined by Code of Civil Procedure 337 and 337a. There is no requirement for a "description" only "a copy of the account" (Code of Civil Procedure 454). The appropriate method for obtaining descriptions of the above is an interrogatory under Code of Civil Procedure 2030.010 et seq. And then, he proceeds to say how he's essentially a nice guy, and even though he is not waving his objections, he sends me a copy of asupposed "agreement". Looks like a generic card agreement, and neither my name nor my signature are on it. Could have copied it from a brochure, as far as I am concerned... But, then, he seems to be conveniently forgetting that one of the causes of actions in the lawsuit is a breach of contract... And how do I put that fact in writing in a more eloquent way than "Hey Mr. Lawyer, your client sued me under breach of contract, too. Why are you omitting that in your response to my BOP?". Thanks guys. Here is my original BOP demand: TO PLAINTIFF GCFS, INC., a California Corporation AND THEIR ATTORNEYS OF RECORD: DEMAND IS HEREBY MADE UPON YOU pursuant to Code of Civil Procedure § 454 to furnish to defendant, Lenny Lasagna, within ten days hereafter, a bill of particulars setting forth the items and details of the account on which the cause of action for goods sold and delivered of plaintiff's complaint is based, including the date of each item or transaction; a description of the services, materials or goods supplied, or other considerations rendered; and the price or charge for each such item or transaction. Dated________________ By: __________________________ Lenny Lasagna, In Pro Per
  16. I have heard that a bill of particulars must be filed 7 days prior to a court case in virginia but I cannot find that in writing anywhere. If anybody knows, I could use some help. Thanks
  17. Hello Everyone, I would like to get some help with my situation. I had an account with c1 that I fell behind on. I then started a payment arrangement with them monthly payments at 0% interest. The payments were being drawn from my account. I contacted them after a few months and told them I could no longer keep making payment. Needless to say they drew next months payment from my account. I went to my bank and had to put a stop payment on all further check. Idk what I was thinking. Thankfully I found this site. I have been trying to fight collection efforts from LRLO. 2/20/12I received collection letter from lrlo 3/19/12C1 sent me a bill So I had two people asking for the same money. 3/16/12 I sent debt validation letter to c1 and lrlo by certified mail. 3/22/12 C1 sent two letters one stated they needed more info like my ss and birthday. The other stated they would forward to another department. 5/5/12 received summons from lrlo for breech of written contract and account stated. 5/15/12 Filed General Denial I did not list any affirmative defenses 6/19/12 received confidential offer from lrlo same amount as lawsuit plus court fees. 8/7/12 received plaintiffs first set of special interrogatories. 9/6/12 responded to interrogatories. Denied everything since debt was never validated. 9/28/12 sent lrlo form interrogatories i checked everything that had to do with contract. 10/1/12 filed case management statement 10/4/12 sent plaintiff request for statement of witnesses and evidence for limited civil cases. Demand for bill of particulars 10/17/12 showed up to cmm I asked to have case dismissed because debt was never validated. Judge told me I was on right track but there are ways to get my point across. It was very frustrating I thought I had to word it different. I ask a different way I was very angry when the rent a lawyer had a smirk on her face. At this point I don't know which way to turn. I feel like I am in over my head. Any help would be appreciated Thank You in advance.
  18. Hi everyone! I was recently sent a complaint by Greater California Financial Services aka GCFS, Inc. after viewing some of your posts here, I was able to submit an "Answer" just days ago ( on the 30 day mark). As a newbie, I am looking for guidance and direction for each step that I must take to win this case! Ive been reading the threads for the last few nights and my eyes are ready to burst! What I would like to know is what is the exact protocol that follows the filing of my "Answer" to the complaint. I have read about Discovery and a Bill of Particulars etc. If someone can point me in the right direction, I d be happy to read up on a thread that may have a similar situation. I so appreciate everyone that takes time out of their day to help others. Thank you all in advance for your unselfishness! God bless, Shelbee
  19. *Adding 1/3/2013 Case Dismissed w/o Prejudice. All docs sent to Plaintiff posted at the end of my thread, but feel free to read through the drama of getting to that dismissal, ups & downs included for your enjoyment! ReadytoWininCA (I did win & you can too!)* Good luck! Hi all, I'm new here obviously & just want to say that this forum is awesome! I want to thank all of the newbies that come for help & all of the regulars who are so excellent about helping us. I've learned so much & know for sure I'm on the right track after so many hours of reading. But of course, some of the discovery makes me extremely anxious & I want to make sure I don't screw up my responses to the JDBs discovery after a good start! I'm also hoping this thread can help others like me in Southern California, I'm willing to share the journey with all. Warning, this is a pretty long introduction. Let me begin with the standard introduction questions: 1. Who is the named plaintiff in the suit? Asset Acceptance 2. What is the name of the law firm handling the suit? A law group in Walnut Creek, CA 3. How much are you being sued for? Several grand over $10k 4. Who is the original creditor? Citibank 5. How do you know you are being sued? Substitute service to owner of home I live in. 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? NONE 9. What state and county do you live in? CA, County: Los Angeles 10. When is the last time you paid on this account? 5/08 11. What is the SOL on the debt? 4 years. They made it by 34 days. 12. What is the status of your case? Have answered, received Form Interrogatories, Special Interrogatories, & Admissions from Plaintiff. Will be sending BOP 8/15. Case Mgmt. scheduled Oct 2012 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? No 15. How long do you have to respond to the suit? I had 30 days, filed w/ court on the 29th day, sent Law group their copy & POS. Now I have 1 week to mail my answers to their Discovery. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing, no exhibits. I want to give as much info as possible to anyone willing to help me figure this out, so as an FYI: I typed up my answer on pleading paper w/ the help of this forum, I'm going for standing, but not telling them (thank you Coltfan!) and in my answer, I denied both generally & specifically each, every, and all of the allegations contained in said unverified complaint & denied that Plaintiff had sustained damages in the sum or sums alleged, or in any sum or sums, or at all. And used these Affirmative Defenses in the answer: 1) That neither the unverified Complaint nor any cause of action in the Complaint states facts sufficient to state a cause of action or claim against this answering Defendant. 2) Answering Defendant has had No Prior Course of Dealing with Plaintiff sufficient, or at all, to support this action or certain causes of action therein. 3) Answering Defendant has had no meeting of the minds or agreement as to the amount, if any, due and owed under the parties’ agreement, if any, sufficient to support this action or certain causes of action therein. 4) That as Plaintiffs’ unverified Complaint on file herein is set forth in conclusionary terms, this answering Defendant cannot fully anticipate all affirmative defenses and/or immunities that may be applicable to the within action. Accordingly, the right to assert additional affirmative defenses and/or immunities, if and to the extent that such affirmative defenses and immunities are applicable, is hereby reserved. I'm not sure why I waited so long to get a BOP finished (or send it for that matter, doing that tomorrow) but this is what that looks like (on pleading paper w/ the titles & case # etc): TO PLAINTIFF, Asset Acceptance, LLC, AND THEIR ATTORNEYS OF RECORD HEREIN X & X Law Group: DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant, within ten days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for open book account of plaintiff's complaint is based; including the date of each item or transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item or transaction, and all payments, interest charges, fees, or credits that have been made to the account. Please also provide a copy of any agreement assigning the account at issue to the Plaintiff, any contract between defendant and plaintiff relating to the account in question, and a copy of the agreement that was executed in the county of Los Angeles referred to in the original unverified complaint. I added that last statement as Calawyer (THANK YOU!!) suggested I could in a thread I found on this forum. If you see a problem with any of the above, please let me know! I should also say that on my current credit report AA is listed & the year the account was created was 1997 (I was a resident of Texas then & I hope that matters down the road, but I don't know if it does) Since I'm sending the BOP tomorrow w/ POS, I'm spending this week finishing my responses to their Discovery (I need to mail it to them by Tuesday 8/21, but Monday would be better) & then I'll start on what I should be requesting in terms of Discovery to them. After the BOP, I like the idea of Admissions A LOT! Ok, if any of you are still awake I have several questions about all sorts of things, but I'll start with the ones that are causing me to wake up at 4 am! Any suggestions would be immensely appreciated! They used form interrogatories (Limited Civil - Economic Litigation) and under the "Contract" section they are asking 4 questions (keeping in mind that they attached nothing to the complaint - my brain keeps saying "What agreement or contract & erf?" and I know that isn't the answer I need to put here: 150.8 #10 Identify each agreement excused and state why performance was excused. 150.9 #11 Identify each agreement terminated by mutual agreement and state why it was terminated, including dates. 150.10 #12 Identify each unenforceable agreement and state the facts upon which your answer is based. 150.11 #13 Identify each ambiguous agreement and state the facts upon which your answer is based. Also: Definition INCIDENT: includes the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding. I'm assuming the INCIDENT is the alleged injury to the OC when someone stopped paying on this credit card account. 112.4 Identify each document or photograph that describes or depicts any place, object, or individual concerning the INCIDENT or Plaintiff’s injuries, or attach a copy. (if you do not attach a copy, state the name, ADDRESS, and telephone number of each PERSON who had the original document or photograph or copy.) What are they talking about? and my answer: No such document or individual exists? 114.1 If you contend that any PERSON involved in the INCIDENT violated any statute, ordinance, or regulation and that the violation was a cause of the INCIDENT, identify each PERSON and the statute, ordinance, or regulation. my answer: I never contended anything about the above, but how do I word that or is there a better answer? They also sent Special Interrogatories (2) and Admissions (9 alarming questions) that I have questions about, but how about I start with the above. Are the contract questions supposed to be totally ridiculous, I mean its a JDB, I don't have a contract with them, and they didn't supply the contract I allegedly had with the OC. Thank you very much in advance for your time reading this & for any suggestions you may have! I'm going to go read the Code of Civil Procedure for Discovery, good times!
  20. I. Introduction The case at issue is governed by state and federal statutes in the area of fair debt collection practices, unfair business practices B&P code 17200, and fair credit reporting. Plaintiffs have violated a number of these statutes in the course of these proceedings. 1. The complaint at issue is filled with unsupported claims, hearsay, and inaccuracies. 2. Defendant has answered the complaint after uncompleted substituted service. The answer has several valid affirmative defenses. 3. Defendant has never entered into an agreement with the plaintiffs. 4. The plaintiffs have been informed that the alleged debt is not valid, and plaintiffs have not validated the alleged debt. 5. The plaintiff's agent informed defendant's employer about the nature of the debt collection case which is a violation of Cal Civ.Code. §1788.12(a). 6. Plaintiffs have used hearsay statements in the pleadings of the case. 7. The plaintiffs have been informed that documents propounded during discovery have signatures which are not genuine particularly the alleged credit application, and the alleged notary of the subpoenaed documents. 8. Plaintiff's affiant cannot authenticate the records of another entity. 9. Plaintiffs have engaged in acts that create Unfair Competition Law B&P code §17200 violations. 10. Plaintiffs have not completed the Bill of Particulars CCP§ 454 defendant propounded on them. The Plaintiffs has not complied with the Tentative Rulings on date which Plaintiff is ordered to provide a further account/bill of particulars. 11. Plaintiffs failure to state a claim for which relief can be granted have left them with a lack of standing. Without standing, the case cannot be ruled in plaintiffs favor. 12. Plaintiff’s witness was not located for service of process within 150 miles of the court as required by CCP98 ©, and thus the CCP 98 declaration of Wandi Chamberlain is not valid or admissible in Court and should be excluded and struck. The witness further is not an employee of Crap1. and cannot authenticate the records of another entity. II. Plaintiff lacks standing to proceed in this matter 1. The defendant requests the court find that Plaintiffs have failed to prove standing 2. Without a valid agreement the Statute of limitations has expired. The plaintiff has no valid written agreement. The statute of limitations on an instrument not in writing is 2 years in the State of California. 3. Defendant has requested a Bill of Particulars, a pleading, in an effort to find out what controversy exist, what are the rights of the parties, what venue is proper, what choice of law is in effect for the alleged causes of action, what rights plaintiff has waived in the alleged action, and what course of action is proper repeatedly from the plaintiff to no available. III.Defendants in Limine matters and evidence exclusion a.Plaintiffs Delaration in lieu of live testimony 1. The Plaintiffs has submitted a Declaration of Wandi Chamberlain in lieu of live testimony dated 00/00/000. The affiant states her current address is ..., which is outside of 150 miles required by CCP 98. The affiant states she can be served at ....which is within 150 miles of this court. An attempt to serve Wandi Chamberlain was made at the address listed within 150 miles of this court on ... A true and correct copy of the attempted service is attached as Exhibit A. Additionally, it is completely insufficient to provide “designate” or “in car of” an attorney or other person to accept service, the code requires personal service. 2. According to Herrera v Deutsche Bank National Trust Co. 196 Cal. App. 4th 1366 (Cal. App. 3d Dist. 2011), the affiant was not a percipient witness and the Declaration was vague on the affiants true service address. The Declaration was executed outside of California and was not witnessed and no oath was taken by an officer of the court in the jurisdiction it was made. 3. In Mathews v Eldridge 424 U.S 319 (1979), “Where credibility and veracity are the issue, written submission a wholly unsatisfactory basis for decision.” Justice Kennard questiond whether there would be a problem accessing credibility and veracity in a trial by declarations? “It is crucial”, she said, “in a trial court to observe demeanor to determine truth”. 4. The affiant makes unsupported statements in that are based on hearsay (Evid. Code 1200), lack of personal knowledge (Evid. Code 702(a)), Improper Authentication (Evid. Code 1402). Defendant objects to The Declaration on these grounds. Defendant requests the court that it be stricken from the record. 5. According to the holding in Elkins v. Superior Court, 41 Cal. 4th 1337 (Cal. 2007), defendant requests the court to strike the declaration. CCP§436states: “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. ( Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”. 6. The declaration attempts to include hearsay evidence in the proceedings without the ability of the trier of fact to evaluate the credibility of the witness. The declaration also does not authenticate documents properly in that the statements of the witness are too generalized to provide the defendant and the court information of the alleged documents status as to their physical attributes and source. Ca Evidence Code§1402 states that: “ The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the alteration or appearance thereof”. 7. The Documents marked as Plaintiffs (EXHIBIT 1) show marks of the type usually added by image processing software on the front and the back. The marks are consistent with marks that delineate the selection boundaries for elements of an image that will be changed. This leads defendant to believe that the alleged billing statements are computer stored images. 8. The United States Bankruptcy Panel 9th circuit weighs in on computer records evidentiary foundation standards in it's decision in In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005) The court found the complexity of “ever-developing computer technology” requires careful attention to ensure that the document offered in court is the same record that was originally created on the computer. In re Vee Vinhnee, 336 B.R. 437 (B.A.P. 9th Cir. 2005)Id at 445. Other legal scholars have written about this need for the 11 step process cited by the court. In Cooper Offenbecher, Admitting Computer Record Evidence after In Re Vinhnee: A StricterStandard for the Future? He stated “The Vinhnee court’s emphasis on reliability, accuracy, and system knowledge is consistent with urgings by the Manual and some scholars. Though it employs an eleven-step foundation process that has not previously been cited by courts, the key inquiries are into accuracy and reliability. These issues are not new and are the crux of traditional authentication inquiries in all areas of evidence. Imwinkelried’s foundation process has been in circulation since 1980 and his Evidentiary Foundations book is a widely employed trial tool.” Defendant has served a Notice in lieu of subpoena to compel attendance before the court and to produce books, documents and other things. The defendant expects the witness to appear at trial as no objections were served to defendant. 9. Plaintiffs have tried to introduce the alleged documents into this proceeding with improper foundation as to their admissibility. Defendant has previously stated in his trial brief the alleged billing statements have strange marks, and differences of font, alignment, and clarity of type that makes defendant objects to them on the grounds of hearsay, lack of personal knowledge, improper authentication, lack of standing, and assumes facts not in evidence. b. Other in limine matters and exclusions 1.Defendant objects to the evidence proffered by Plaintiff s as hearsay(Evid. Code 1200),lack of personal knowledge (Evid. Code 702(a)), improper authentication (Evid. Code 1402) 2. Defendant also requests that any evidence or information not propounded to defendant before 15 June 2012 be excluded and not be allowed into testimony due to surprise at trial. 3. Defendant also requests that Personal financial information of defendant not be discussed. The nature of the claims and defense are that plaintiff has no standing to sue defendant 4. Defendant requests that any past financial information of Defendant be excluded as prejudicial. The mentioning of privileged information should not be part of these proceedings. Prejudical matters can be excluded by the court. Ca Evid. Code 352 allows it to be excluded. VI. Rosenthal violations Plaintiffs agent disclosed alleged debt information to the defendants employer on occasions. These are violations Cal. Civ. Code §1788.12(a) . VIII. Discovery Violations The failure to comply with discovery has prevented the defendant from amending his answer to include affirmative defenses of Statute of limitations, laches and others. These violations have hampered defendant’s investigation efforts. Defendant has met and conferred with plaintiffs counsel in an effort to persuade them to dismiss this case with prejudice, due to plaintiffs lack of standing. Plaintiffs have failed to provide a privilege log for objected to discovery, and have used boiler plate objections to discovery in an effort stall production of necessary documentation of the alleged account in question. In Doppes v. Bentley Motors, Inc., 174 Cal.App.4th 967 (Cal. App. 4th Dist. 2009) the trial court imposed sanctions for the discovery actions of Bentley.
  21. In suit with Asset Acceptance. Court date for early December. Plaintiff claims both open book and account stated as well as other claim of unjust enrichment. We request BOP and they sent a single line billing statement from after account was closed. Filed motion to compel. Here is the relevant portion of Plaintiff's Opposition to Motion: "However, Defendant's analysis is misdirected because this litigation not only alleges liability based on a common counts cause of action for an open book account; but also, on a common counts cause of action of an account stated. The terms "book account" and "account stated" are not synonymous, and the requirements are not the same. Coffee v. Williams found, 'an account stated is a document - a writing - which exhibits the state of account between parties, and the balance owing from one to the other when assented to, either expressly or impliedly, it becomes a new contract. An action upon it is not founded upon the original items, but upon the balance agreed to by the parties.' (1894) 103 Cal 550 Similarly, in Partridge v. Butler, there is no need to set forth or provide the separate items of liability fro which the balance results (1896) 113 Cal. 326, 328. An account showing all charges and credits thereto is not applicable. Hallford v. Baird (1938) 27 Cal. App.2d 384, 389. As shown in Exhibit A, Plaintiff has sufficiently complied with Defendant's demand for a Bill of Particulars by providing Defendant with documentation that goes beyond the requirement of what is needed in proving a common counts cause of action based on an account stated theory." Our motion is scheduled for Oct. 23. Any advise would be appreciated.
  22. Hi everyone, I was sued by a JDB earlier this year, and I'm currently involved in an ongoing case. This site was a real treasure trove of information, and I really appreciate everyone helping the entire community out. 1. Who is the named plaintiff in the suit? CAVALRY SPV I, LLC 2. What is the name of the law firm handling the suit? Winn Law Group 3. How much are you being sued for? Just barely over $2,000 Limited Civil 4. Who is the original creditor? Bank of America 5. How do you know you are being sued? Served 6. How were you served? Papers were left with my parents at my old address. 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? Letter stating intent to sue 9. What state and county do you live in? Orange County, California - but this is happening in San Bernardino County because they used my old address. 10. When is the last time you paid on this account? As far as I can tell, it was not outside SOL at the time of filing. 11. What is the SOL on the debt? 4 years 12. What is the status of your case? The county court website shows that I filed my answer, have been making my payments, and that the Case Management Conference is coming up in mid-November. 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? No. Want to send a Bill of Particulars request ASAP, though - have it written up and ready to go, pending someone looking it over and the money for the proof of service. 15. How long do you have to respond to the suit? I've responded using the format and 4 basic affirmative defenses adapted from this site. (Big thanks!) Went to fee waiver hearing. Judge refused to hear anything because my income is slightly above the poverty line, but agreed to allow me to make payments. I would like to send out a BoP and perhaps get some help for the CMC, since I'm not sure how to prepare for that. I can't seem to find much information about that. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No evidence at all was sent. Just the summons, complaint, and other paperwork. Nothing to back up their claims at all. The first part of the Complaint is General Allegations, and there are 5 paragraphs. There are two Causes of Action: 1. Account Stated 2. Money Lent Paid or Expended I can type the full complaint out if that would help. I wasn't sure if the complaint was verified or not, and since my parents got this paperwork to me right at the last minute I didn't have a lot of time to ask for help. I filed my response by admitting that I am who they say I am, and then proceeded to deny all allegations due to not having sufficient information. Does anyone have any advice regarding how I should proceed at this point? Thanks again!
  23. I sent my request for Bill of Particulars and they sent me the letter below: Regarding the Bill of Particulars you have requested, pursuant to CCP 454: A demand for bill of particulars may be served on the plaintiff only in an action on "an account." As stated in the Code: " It is not necessary for a party to set forth in a pleading the items 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: i.e., there is nothing left to itemize. [Ahlbin v. Crescent 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. I thought that I could request a BoP in cases where the causes of action were for more than "account stated". The suit they filed against me also alleges "breach of contract". They sent me the letter above in regular mail with NO proof of Service. The letter finally included the full account number instead of just the redacted numbers with the amount due and that's it. Should I just go ahead with discovery? Nothing has been filed with the court so far since I filed my answer to the complaint. If anyone has any advice to give, I would really appreciate it! I've been working through this case by myself and all the info and support on this forum has been priceless!
  24. Hello! I'm a newbie here and grateful of finding this forum. I'm copying and pasting from another post similar to my case and changing the items specific to my case: 1. Who is the named plaintiff in the suit? PORTFOLIO RECOVERY ASSOCIATES 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) HUNT & HENRIQUES, Attorneys at Law 3. How much are you being sued for? $6,000 4. Who is the original creditor? (if not the Plaintiff) US BANK 5. How do you know you are being sued? (You were served, right?) Yes, served. 6. How were you served? (Mail, In person, Notice on door) Served in person at home. 7. Was the service legal as required by your state? I believe so. 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, Alameda County. 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 11. What is the SOL on the debt? To find out: 4 years being in California 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). I will post when the case is available online. 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. States indebted to Plaintiff’s predecessor. There was no questionnaire attached. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. I do not see an evidence page, affidavit, statement, or contract. Here is all listed in order. Page 1. Summons Pages 2-3. Complaint Page 4. Cause of Action Page 5. Statement of Location/Venue Page 6. Certificate of Assignment Page 7-8. Civil Case Cover sheet Page 9- Certificate of Service Questions: 1. Based on my readings, I should file for a general denial answer to the court and send a copy to Hunt & Henriques. When I look a the CA form for general denial, it states it could only be used for $1000 or less. However, I've seen other postings where this form was used above $1000. Please confirm if I can use this form since the claim is $5000. 2. Should I file for a Bill of Particulars right after my general denial or wait? 3. If this goes to trial, do I have time prior to trial to obtain an attorney or should I start seeking for one at this begining stage. Thank you everyone for all your help.
  25. Update: I am trying to put together meet and confer letter but don't know what do put. Any help from you knowledgeable ones is appreciated. They did not include all statements and payments, only couples prior to the date that lrlo claimed defendant stop or failed to pay; 11/2010 to 8/2011. Payment stopped on around march 2011. The date they claimed that defendant failed to pay was incorrect also. I demanded the contract in my BoP but still no contract attached. I found couple exemplars of meet and confer, but most of the cases lrlo did not respond. How should I put together a meet and confer letter in this case? I found this but in this case lrlo did not respond: "On September XX, 2012, Defendant sent to Plaintiff a request for a Bill of Particulars pursuant to CCP 454. On September XX, 2012, Plaintiff responded to Defendant’s demand for Bill of Particulars by contending that a Bill of particulars is inapplicable to plaintiff’s causes of action: Account Stated. As a preliminary matter, plaintiff’s objection to Defendant’s Bill of Particulars is not well taken. Plaintiff has also alleged a cause of action for breach of contract. A Bill of Particulars is appropriate under this legal theory . See, Distefano v. Hall (1963) 218 Cal. App. 2d 657, 677 (“Section 454 has received a fairly broad interpretation and has been construed to cover almost any kind of contract action for a money claim made up of more than one item.”) The information requested consists of the most basic documents that will be 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. As the Distefano court noted, “The penalty for failure to furnish a bill of particulars, when one has been demanded, is that no evidence will be allowed in support of the cause of action pleaded.” Please provide a complete response within 10 days or 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. " ---------------------------------------------------------------------------------------------------------------------------------- Update: lrlo responded I learned some and still learning, thanks to the knowledgeable ones . LRLO responded the BoP. This is what it says: 1. I am an attorney duly license.. 2. attached hereto is a Statement of Account showing the current amounts owed 3. In addition to the principal and interest amounts stated within the Statement of Account, the plaintiff may also be entitled to costs and attorney fees per statute and/ or the parties written agreement. 4. Platintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or the parties' agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at trial. They only attached the customer agreement info but still no written contract or any contract attached. They also attached final statements where it actually controvert itself with the date they claimed defendant failed to pay ( on or about sept 21 2011). by the way, I checked on my credit report but there are no reports from cap 1. what should I do at this point? Thanks again, knowledgeable ones. Just by discussing questions here lowers my blood pressure. ---------------------------------------------------------------------------------------------------------------------------------- Original thread: I am being sued by cap 1 through lrlo in cali and I am in the process of filing my general denial since the complaints are not verified. But I don't know how to put a good affirmative defense together, I urgently need help please! "Factual allegations common to all cause of action" 1. Defendant(s) are over the age of 18 and indebted to plaintiff.. 2. Defendant agreed to pay... 3. Plaintiff has 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 of $3K 4. Billing staments were mailed.. 5. Within the past four years, on or about SEPT 21 2011, the defendant breached the agreement by failing to pay the plaintiff. 6.Plaintiff has made a demand.. 7. No part of the above balance owed has been paid to date.. First cause of action: breach of written contract 1. plaintiff set forth by reference.. 2. The plaintiff and defendant entered into written contract... 3. The plaintiff sent to defendant bills reflecting, inter alia, all charges incurred withi the accounts, the payment due.. 4. Between the date of the aforementioned contract to the present, defendant breached said contract, by ceasing or failing to make the payment due on the Account. 5. No part of the principle sum $3K has been paid 6. As a direct and proximate result of Defendant’s breach of said written contract, Plaintiff has been damaged in the aboved stated sum. Second cause of action: account stated 7. The account was stated in writing by and between the plaintiff and defendant.. 8. There is now due, owing... 9. plaintiff alleges that there is an account stated by operation of law wherein the Plaintiff billed defendant for the credit balance and received no objection to it 10. No part of the above balance owed has been paid... They did not attached any contract for their claim. What should I put for my affirmative defense in general denial?