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Case mangement date set.


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Thanks to all you. The forum has been a huge help in understand some of this legal stuff.

Back ground:

California case brought by lawyer for CA who is a JDB.

Case management set for next month.

Filed answer and answered discovery.

I asked for discovery and was sent some responses.

I had asked thru discovery for the original signed credit application with defendants signature.

The response was "pursuant to 12 CFR 226.25 a creditor is only required to keep account records for 2 years".

Is this true? Doesn't the CA/JDB need to produce the original signed contract to win?

My seconded question is about meet and confer. I have been in contact with them through discovery but is this enough? Do I need to call them, if so how do I not step on a landmine? Any and all help is greatly appreciated.

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Did they produce anything else? Any billing statements from the OC, an affidavit from an OC employee, chain of title, etc.?

The statute they listed, which is part of the Truth in Lending Act, applies to records of required periodic disclosures, i.e., billing statements, not to the signed contract.

File a motion to compel.

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Thanks for the answer.

They sent me 5 copies of billing statements,

3 bill of sells of debt (it changed hands 3 times),

A blurry photo copy of a credit card agreement and

some strange letter that says I am familiar with this document and it is verified.

Nothing with a signature.

Also they are claiming that this is a "account Stated"

Any options?

Thanks

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It's like pulling teeth here.

Since it has changed hands a few times, has the SOL expired?

The "strange letter"... is it an affidavit? and who is the affiant? an employee of the JDB or the OC?

Are there any references to your name, account number, etc. in those bills of sale?

I think the theory behind account stated is that you never disputed it, so it must be right. Did you ever dispute it with the OC or any of the other JDBs/CAs?

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Thanks CJTX

Since it has changed hands a few times, has the SOL expired?

No, the sol in California 4 yrs.

The "strange letter"... is it an affidavit? and who is the affiant? an employee of the JDB or the OC?

The strange leter is titled Verification, I am the assitant Vice President of legal operations for the Plantif in this action (JDB).... I have read the attached documents..... I belive them to be true.

Are there any references to your name, account number, etc. in those bills of sale?

No

I think the theory behind account stated is that you never disputed it, so it must be right. Did you ever dispute it with the OC or any of the other JDBs/CAs?

I never disputed with OC and Never knew that the account had changed hands until summons.

Now for a new twist and thank you CJTX for making me look at the Bill of sales again.

OC sold to JDB#1 on 7/19/2006

JDB#1 sells to JDB#2 on 5/11/2007

JDB#2 sells to JDB#3 on 11/13/2003 No typo on my part its on thier affidavit of Asignment.

JDB#3 sells to JDB#4 on 11/13/2003 No typo on my part its on thier affidavit of Assignment that they sent me during discovery.

Also on the last 2 affidavits of assignment were noterized and the notary was the same person and put down his comission ends on 4/17/06 on one document then 5/17/2006 on the next.

This is getting very interesting:D

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-Any statement averring the truth of documents that does not come from a representative of the Original Creditor should be objected to as hearsay.

-The chain of assignments is obviously faulty. My wife received similarly faulty assignments in her lawsuit. We never got to point this out to a judge since the plaintiff filed for a dismissal the day before the trial.

-Regarding account stated: basically, an "account stated" claim from JDB doesn't hold water; there was no previous underlying agreement, and failure to respond to a dunning letter doesn't establish an account stated.

Here's something from my files that might help. Unfortunately, I'm not sure where I found it.

Under California law "[a]n account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another." Gleason v. Klamer, 103 Cal. App. 3d 782, 786-87 (1980); see generally 1 B.E. Witkin, Summary of California Law, Contracts, §917 (9th ed.). An essential element of an account stated is that both parties have assented to its terms. Restatement (Second) of Contracts §282. If there is no evidence that both parties agreed to a stated sum, the document is not an account stated. See Zinn v. Fred R. Bright Co. Inc., 271 Cal. App. 2d 597, 600 (1969) (noting a requisite element of an account stated is "an agreement between the parties, express or implied, on the amount due from the debtor to the creditor"). This is particularly true where statements are routinely sent as part of a continuing business relationship between the parties. See American Fruit Growers, Inc. v. Jackson, 203 Cal. 748, 751 (1928).

Generally, an account stated is viewed as a new contract and forecloses further dispute as to the items which comprise the account stated. See Gleason v. Klamer, 103 Cal. App. 3d at 787. Since an account stated constitutes a new contract that supersedes and extinguishes the original obligation, mutual assent is an essential element. Id. at 786-787. However, the parties to an account stated are not bound as to matters that were not contemplated, even though those matters existed when the account was stated. See California Milling Corp. v. White, 229 Cal. App. 2d 469, 478-79 (1964). To further complicate the issue, there may be a partial settlement and account stated as to only some transactions between the parties. Id. at 477.

Good luck.

DH

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