JPRAV - Are they suing me?

[IronMan]

Originally posted in Repair Tips from JPrav on 2/26/03:

"I was contacted by this CRA called the California Business Bureau. I advised them that I would be dealing with the OC. Well I offered the OC a settlement offer of 50% and got no response. Today I get this letter that says:

This will advise you we have an attorney on retainer:

Franklin J. Love

755 East Route 66

Glendora, CA 91740

In spite of previous notice to you, this matter remains unresolved. We intend to refer this claim to our attorney with a request that a lawsuit be filed against you. You are notified that California Code of Civil Procedure Section 1033 provides that in addition to the principal sum owing, you could be held to pay intrest, attorney fees, if applicable, and court costs that include actual filing fees and service of process.

Further this could result in a judgement being entered against you that may have the additional consequence of subjecting certain of your assets to garnishment or seizure. In addition, this could have a negative impact on your credit rating.

If you are interested in resolving this matter, please contact us at (800) 755-1515.

Very truly yours,

Ralph Williams

California Business Bureau

1711 S. Mountain Ave.

Monrovia, CA 91017-1400

What options do I have?"

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Did you do any validation on this?

Did this involve a contract?

How old is this subject debt?

Did you make any written promises or make agreement to pay the CA?

Did you acknowledge this debt, pay on it or verified it was yours with CA?

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Ok, JPRAV's in California. Thank god, we have some wiggle room here!

First off, if the debt was originated by a written instrument it's SOL is 4 years (see Cal. Civ. Proc. § 337-339). Orals are 2 years, but are tough to prove unless 3rd party witnesses can attest to the promise or agreement. If the writing is beyond 4 years, it is known as being 'barred by laches' (past the statute of limitations). If the claim is not legally enforcable, you have no obligation to pay anything. It was up to the OC to bring suit before the SOL ran out.

Second, if this action is being brought about a CA or an atty for the CA, under Calif. Civil Proc. § 116.420(a) "No claim shall be filed or maintained in small claims court by the assignee of the claim." Remember, this is for Small Claims. Defense here is that they are 'estopped by statute'.

You can file countersuit for violations of any applicable Ca. statutes. In fact, you could use a defense of 'Unclean Hands' against them. This allegation and each of your defenses have to be supported by evidence (as with anything in court).

'Unclean Hands' can also apply where they are asking for more than you actually owe. Questions asked here are: Are they asking for more than you agreed to pay? Are they are tacking on more interest, atty fees, court costs, than permitted by law? Any other 'charges' tha are more than law allows?

Without a written instrument or some documentation how can they support their demands and how can you be bound to the alleged debt?

---- Now do you understand why validation is so important? It's an out-of-court "discovery" process and the validation letter is a short form of "interrogatories" that accomplishes this. All without the court headache!!! heeheehee

You must consider your other defenses:

* Their claim is based on an agreement or other writing, but there is no writing.

* You were billed for an item, but never got it

* You returned an item, but billed for it anyway

* A contract where you have a right to cancel and you did (or still can cancel)

* You are a victim of fraud

Without any contract or agreement, how can the CA reasonably take you to court and win? You didn't engage in the original transaction with them, so how can they support their demands?

It's all conjecture without proof!! This is what litigating these things is all about, raising doubt and putting the keeping burden on them to where it becomes too heavy and they get squashed.

Your prayer for relief should also include actual damages, costs, and atty fees if any. I forgot that one on one of mine and kicked myself. If you don't ask the court won't give.

The only reason CA's file is because they know most people are ignorant in the law and their rights. People get scared and either don't show -or- they do show and lose cause they didn't know what they were doing. Then when they find out, it's too late. I think it's time to put a stop to this misuse of the judicial system and abuse to consumers. I think defaults outweigh actual, adjudicated, matters.

Cheers!

[Edit by IronMan on Wednesday, February 26, 2003 @ 11:44 AM]