varesa01

Response to Demand for Particulars

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Thank you Seadragon. The wording of 454 was really an eye opener and gives me much more hope.

These JDBs are amazing! They sent me Interrogatories, Request for Documents and Request for admissions. So, they are requesting documents from me which I had requested from them through Bill of Particulars (and did not receive) so that they can make their case against me??!!

Before I even respond to them I am sending off my own Interrogatories, Request for Documents, and Request for Admissions, using their own wording on the Request for Documents with only slight changes, i.e. exchanging the words "Defendant" and "Plaintiff".

Already sent off the followup on Bill of Particulars giving then 10 days to respond fully. Then if I do not get the documents will go with motion to comply.

Again, much appreciation for all the assistance I have received :)

I love it when the plaintiff (who has the burden of proof) stiffs you on your disocvery. It gives you a big opportunity to provide them with long responses to discovery that say abosolutely nothing. When you are asked an interrogatory about incurring the debt, for example, you can respond:

Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt. For that reason, defendant has asked plaintiff to respond to a BOP setting forth the contract referred to in the complaint, all charges that were allegedly made pursuant to that contract, all credits that were made to the account.....(etc). Although the code requires the plaintiff to respond in 10 days, plaintiff failed to do so. Without such information, defendant is unable even to identify the debt alleged in the complaint, much less provide the information requested in this interrogatory. Defendant reserves the right to supplement her answer to this interrogatory after plaintiff complies with its obligations under the Code.

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I love it when the plaintiff (who has the burden of proof) stiffs you on your disocvery. It gives you a big opportunity to provide them with long responses to discovery that say abosolutely nothing. When you are asked an interrogatory about incurring the debt, for example, you can respond:

Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt. For that reason, defendant has asked plaintiff to respond to a BOP setting forth the contract referred to in the complaint, all charges that were allegedly made pursuant to that contract, all credits that were made to the account.....(etc). Although the code requires the plaintiff to respond in 10 days, plaintiff failed to do so. Without such information, defendant is unable even to identify the debt alleged in the complaint, much less provide the information requested in this interrogatory. Defendant reserves the right to supplement her answer to this interrogatory after plaintiff complies with its obligations under the Code.

ha ha ha That is really a gem! Thanks for providing it, since I will likely use it in the future!

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I love it when the plaintiff (who has the burden of proof) stiffs you on your disocvery. It gives you a big opportunity to provide them with long responses to discovery that say abosolutely nothing. When you are asked an interrogatory about incurring the debt, for example, you can respond:

Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt. For that reason, defendant has asked plaintiff to respond to a BOP setting forth the contract referred to in the complaint, all charges that were allegedly made pursuant to that contract, all credits that were made to the account.....(etc). Although the code requires the plaintiff to respond in 10 days, plaintiff failed to do so. Without such information, defendant is unable even to identify the debt alleged in the complaint, much less provide the information requested in this interrogatory. Defendant reserves the right to supplement her answer to this interrogatory after plaintiff complies with its obligations under the Code.

I know I'm new to this forum, but that has to be some of the greatest (and funniest) verbiage to use against them.

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Thanks to all your help I just received a letter from the lawyer offering me a "limited settlement opportunity". "For a brief period, our Client has authorized this office to discount your account balance by up to SIXTY PERCENT (60%). Can you hear the trumpet blast? They want me to call so I will. The sad thing is that I hadn't yet sent off my incredible Interrogatories, Request for Documents, and Admissions with the verbiage I stole from this thread. Their letter was in response to my followup on demand for Bill of Particulars.

Okay .. My feeling is that they know they have no case so they are trying to salvage something out of this.

Would appreciate some feedback on what I should say. I really want to tell them that I have no inclination to settle a case that I can win in court. Any thoughts .. please!

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Actually realize that I only need to call him if I want to settle and as I don't, I can just go ahead and proceed with my interrogatories, etc. and when they don't respond with the information I need, then take it from there. Sound like a plan?

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You can use this as an opportunity to do a quick meet and confer with them. It is common for them to send out settlement letters but they also do need to answer your BoP request. And you're right; chances are that you would prevail in court. But to cover your bases, call them so that it looks like you attempted to meet and confer that way none of your motions will be denied down the line for failure to meet and confer. Some judges are sticklers about that and others aren't. Don't take a chance and good luck:)

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I called on their settlement letter that said "offer only open until March 7" (sounded like one of those "only on TV" offers) and spoke to no-one in particular who pulled up my account and basically just wanted to know whether I wanted to settle. I said "no". The person said, "then you want to go to court". I responded, "yes" although I think at that point I was supposed to be scared. That was about the total of the conversation.

I mailed my response to their interrogatories, etc. and my own interrogatories on Monday. Will then follow with a motion to compel.

Think that initially they were not prepared for an answer to their summons and certainly were not prepared for a battle of any kind. Sad that many people cannot afford the cost of responding to a summons. It is an unequal battle.

Will post again as things develop.

I again want to thank all those who have given me so much help on this thread and enabled me to battle this JDB.

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Too much else going on in my life but have to get back to this. I received no response to my request for interrogatories, documents and admissions from the plaintiff and it's been well over 30 days.

Apparently, according to the book I purchased (California Civil Litigation .. Susan Burnett Luten) my next step is a Meet and Confer which can be done by letter but there is no indication, even general, as to how to word this letter and to be honest, I have no idea!!

Would really appreciate some pointers on this. Thanks in advance!!

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There are a whole host of threads on what rule of court mandates meeting and conferring on this site. But needless to say you need to leave them voice mails AND send them a letter. Give them ten days to respond and then do a motion to compel OR in the alternative a motion in limine to exclude evidence they have not put forth. Anyway the letter for meet and confer does not need to take on a particular form. You just need to tell them that you haven't heard from them regarding your discovery requests and the time has elapsed. You'd like to resolve this amicably but if you don't receive any docs within ten days you'll do a motion to compel or to exclude evidence.

If they don't respond to your note, then I'd move to exclude evidence personally. Calawyer's threads on motions in limine and bill of particulars are particularly helpful on this front. But first, go ahead and leave them voice mails and send the letter with proof of service just to be safe:) Discovery is SUPPOSED to be self executing but sometimes, like with the bill of particulars request, they don't produce anything and thus have no case!

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Thank you Rikkivs. Guess my search skills are sadly lacking. Or could be that my search criteria was way off!

I will take your advice, leave them an e-mail and then send them a letter.

I just received a Case Management Statement from them which said absolutely nothing but the good thing is that it gives me a basic template for mine.

Again, I appreciate all the help I get on this site.

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Don't email them unless you guys have an agreement that they'll accept your emails. Leave them a VOICE mail and send the letter. I was tired when I typed that first comment so if I said email, please forgive! And don't get on yourself for not seeing the posts about meeting and conferring; believe me there is truly a ton of information here! Here is a link to a thread I started about the matter and the comments from Calawyer, Denita and the other posters are most helpful.

And lastly, bear in mind that 99.999% of the time, plaintiff counsel will NOT meet and confer. But most Defendants don't know that they can be sanctioned for not doing so;)

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Thanks again :)

I'm pretty sure you said voice mail and letter but thanks for clarifying. I will definitely check out your site.

I really like it here as no-one has ever said to me, or any one else that I can remember, in so many words, "you are just too stupid" and I have seen incredibly snarky comments on other sites which is, of course, why I stopped visiting them!

Again .. thanks so much!!!:)

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Hope someone can answer this. Just received a response to my request for interrogatories and it went like this. In response to #1 which reads: Are YOU the direct assignee of Washington Mutual or are YOU an assignee of an assignee? If there are additional assignees, identify each assignee, their business address, and telephone number.

Their response: This party objects to this Request, among others, that it is impermissibly compound. Without waiving the aforementioned objection, Plaintiff states that it obtained the account from Chase Bank.

So, first Washington Mutual, now Chase. Most other interrogatories were answered with the "impermissibly compound" statement. Does anyone know what this means? I have searched but can't find anything.

In response to my request for documents, it was all .. basically can't find them but will look. As for Admissions it was all "unable to admit or deny at this time" except for admitting that they do not have the contract.

Also, I messed up in going over allowable 35 requests so not sure what to do about that. Should I send out a new set of requests with the correct number of requests?

Appreciate any help with this.

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Hope someone can answer this. Just received a response to my request for interrogatories and it went like this. In response to #1 which reads: Are YOU the direct assignee of Washington Mutual or are YOU an assignee of an assignee? If there are additional assignees, identify each assignee, their business address, and telephone number.

Their response: This party objects to this Request, among others, that it is impermissibly compound. Without waiving the aforementioned objection, Plaintiff states that it obtained the account from Chase Bank.

So, first Washington Mutual, now Chase. Most other interrogatories were answered with the "impermissibly compound" statement. Does anyone know what this means? I have searched but can't find anything.

In response to my request for documents, it was all .. basically can't find them but will look. As for Admissions it was all "unable to admit or deny at this time" except for admitting that they do not have the contract.

Also, I messed up in going over allowable 35 requests so not sure what to do about that. Should I send out a new set of requests with the correct number of requests?

Appreciate any help with this.

From your previous post, it appears that plaintiff served its answers to your discovery late. You need to check to see whether this is true. If so, Under California law, plaintiff has waived any objection to each late discovery request. Here is the section for interrogatories:

CCP 2030.290: If a party to whom interrogatories are directed fails to

serve a timely response, the following rules apply:

......The party to whom the interrogatories are directed waives any

right to exercise the option to produce writings under Section

2030.230, as well as any objection to the interrogatories, including

one based on privilege or on the protection for work product under

Chapter 4 (commencing with Section 2018.010).

I truncated it a bit. Here is the whole code section:CA Codes (ccp:2030.210-2030.310)

There is a similar language for each of your discovery requests in the code.

You need to look at the proof of service and see what day plaintiff responded then caluclate whether it was late (add 5 days if you served your requests by mail). If they are late, post again and I'll help with a meet and confer letter. If not, you'll need to meet and confer also but the letter will be different.

P.S. A compund interrogatory is one that asks two or three questions instead of one question.

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Thanks for such a speedy response!

They actually did not respond in time to my Request for Interrogatories, Documents or Admissions but I called and spoke to them. They said they needed more time which I gave them in a certified letter. They responded within that extra time period.

Received some documents today from them, one of which is a Bill of Sale from Chase to the Plaintiff assigning everything to them.

They didn't respond to all requests for documents but wonder if they have the upper hand now with that assignment. Hope not. They're truly nasty people.

So, guess my question is. Where do I go from here? I don't have the Conference thing until October BTW but feel that I should be doing something!

Again, much appreciation for your help.

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Thanks for such a speedy response!

They actually did not respond in time to my Request for Interrogatories, Documents or Admissions but I called and spoke to them. They said they needed more time which I gave them in a certified letter. They responded within that extra time period.

Received some documents today from them, one of which is a Bill of Sale from Chase to the Plaintiff assigning everything to them.

They didn't respond to all requests for documents but wonder if they have the upper hand now with that assignment. Hope not. They're truly nasty people.

So, guess my question is. Where do I go from here? I don't have the Conference thing until October BTW but feel that I should be doing something!

Again, much appreciation for your help.

What exactly does the bill of sale say?? Does it cite your name and account number specifically and is it signed and authenticated?

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It is signed and authenticated. Attached is a statement stating:

The outstanding balance on your credit card is scheduled to be written off as a bad debt shortly".

The letter read as follows in part (it is long).

Exhibit A

BILL OF SALE

Chase Bank USA, N.A. ("Seller") for value received and pursuant to the tems and conditions of Credit Card Account Purchase Agreement dated May 8, 2009 between Seller and Hilco Receivables, LLC ("Purchaser), its successors and assigns ("Credit Card Account Purchase Agreement"), hereby assigns effective as of the File Creation Date September 8, 2009 all rights, title, and interest in Seller in and to those certain receivables, judgments or evidence of debt described in Exhibit 1 attached hereto and made part hereof for all purposes.

It goes on to say ... "File referenced in Exhibit C hereto and Exhibit D of the Credit Card Purchase Agreement and transferred to Purchaser herewith.

The attachments are not marked as stated in the Bill of Sale as "Exhibit I" or Exhibit C and D.

It is strange as if they had those documents from the beginning, why didn't they produce them and why did they not show the assignment in the original summons?

Do you want me to type out the whole letter? I can do that if it would help.

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Is Exhibit 1 attached? If not, you have no idea if your account was actually assigned.

In response to the document demand, did they object or agree to produce documents? Did you ask for all account statements?

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Just for your information, Chase Bank bought out Washington Mutual a couple of years ago during all that bank fiasco with alot of banks going under. WM went under and Chase bought them. I had my accts with WM at the time. So it really is the original creditor so to speak..

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Thanks Calawyer:

There is no exhibit 1 attached. Well, there is paper attached but nothing marked as exhibit 1, exhibit C or D as mentioned in the letter.

The letter does not mention my name or account. The attachments are a copy of a statement and a copy of the contract.

"In response to the document demand, did they object or agree to produce documents? Did you ask for all account statements? "

I did ask for all account statements. Their response to every document requested,without exception, was the following:

"After diligent search and reasonable inquiry, Plaintiff is unable to provide the original signed agreement or contract at this time. Should Plaintiff find a document responsive to this Request, it will be provided to Defendant".

I could be wrong but it appears that they do not have proof of assignment of my account in particular as I'm sure they would have produced it.

What do you think should be my next step? They have been saying since my BOP that they would produce documents when they find them. It's been a long, long time.

Again, appreciate your input.

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I could be wrong but it appears that they do not have proof of assignment of my account in particular as I'm sure they would have produced it.

What do you think should be my next step? They have been saying since my BOP that they would produce documents when they find them. It's been a long, long time.

Again, appreciate your input.

If I were representing you, I would consider bringing a motion for summary judgement on the ground that plaintiff can not prove standing (no assignment), can not prove that any contract exists between the parties (no contract) and can not prove that any account is even delinquent (doesn't have the statements). But these motions are hard to bring and Courts sort of disfavor them because they deprive a party of a trial.

Another option is to just lay in the weeds and serve a supplementasl request right before trial to ensure that no other evidence exists and then do a motion in limine before trial. A motion in limine asks the Court to preclude evidence because it haas not been produced during discovery.

Good luck

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The response you received is insufficient. Plaintiff is required by statute to provide the information within 10 days. In essence, this statutory procedure is a substitute for setting forth the complete accounting in the complaint. Therefore the plaintiff should have it at the ready and give it to you upon demand. There is nothing burdensome and oppressive about a procedure required by law. Plaintiff’s statement that is “reserves the right to produce documents later is the opposite of what the code requires. CCP 454 says that plaintiff must respond to the BOP “or be precluded from giving evidence thereof.”

The likely problem is that plaintiff doesn’t have the information. So, you need to get a court order requiring the plaintiff to give it to you. First, you must meet and confer. That just means you need to send plaintiff a letter. The letter should say California Code of Civil Procedure section 454 requires you to respond in 10 days. You did not do so. If I do not have a proper response by _____ [insert date 10 days from now], I will file a motion asking the Court to preclude plaintiff from giving any such evidence at trial.

Your motion to the Court can be very simple. You should probably ask that plaintiff be required to provide a further BOP or, in the alternative, be precluded from using any such evidence at trial. If you need help with the motion, post again. Several people on this board have filed them and may be able to email you an exemplar.

Calawyer is correct in that you SHOULD try to get the plaintiff to produce the info you requested however, I went a different route.

I played dumb (till the trial of course) when the plaintiff didn't give an adequete response.

My strategy was that the plaintiff would think that I wouldn't know how to make the BOP stand up in court. So I sent a BOP and a followup letter telling plaintiff I would as for evidence to be ommitted at trial (otherwise plaintiff could ask for dismall without predjuce and the case would continue).

When plaintiff had insufficient evidence at trial, I said "judge, I have shown patience and good will in trying to resolve this debt, I also warned plaintiff that I would ask for EVIDENCE TO BE OMMITED at trial, plaintiff failed to respond on second warning. I move for judgement for the defendent. .. I got it. "

It was my theory that if I forced them to give me info then they might try a counter move (which was dismissal without predjuce), so I waited for trial. .. if they had enough evidence then I might have settled, but usually you get a copy of the evidence that will be presented at trial prior to trial. .. I recieved none, so I knew they didn't have any evidence.

I read that if you push too hard, then you might for the other party to find a way to stay in the game without evidence.

I recommend an alternative approach:

1) Send BOP

2) Send courtesy request for BOP (if evidence is in adequete) asking for evidence again and warning that you will ask for evidence to be ommitted at trial.

3) 30-45 days before trail ask to see all docuements to be presented at trial, as outlined by Section 98.

4) If evidence is produced, send you Motion in Limine. If no evidence, then you have the case won.

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