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RECEIVED RESPONSE TO BOP - HELP! IN CALIFORNIA


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ok I Prematurely asked a question this morning about not receiving a response to a BOP that I sent 2 weeks ago. I got an inadequate response this afternoon. Perhapps some of you experts can give me some advice on what to do next, if they have broken an rules and etc etc. This response was filed with the court. This is part of what they said:

GENERAL OBJECTIONS

Defendant so and so's BOP is inappropriate for Plaintiff Capital One's Account Stated cause of action because an Account Stated cause of action is demmed to have merged the various items on which the earlier accounts are based, ie, there is noting (their spelling which I think means nothing) left to itemize (I asked for itemized billing from ZERO) (what I received from them were a few statements from 2006 and the last one ending in Aug/Sept 2006 which would make this case SOL if that is the last statement I didn't pay on. Just trying to fill in some blanks of info). In my original response to the law suit I stated that it was SOL but I wasn't sure of the last date the card was paid on. How can I find out for sure the last date I paid on the account?

They go on to state there is 'nothing left to itemize. See Ahlbin v. Crescent Commercial Corp (1950) (Man they are going way back to find a case!) anyway to continue " Accordingly, defendant so and so is strictly limited to Unjust Enrichment cause of action. Distefano v Hall (1963) 218 Cal. App. 2d 677. They go on to say that Plaintiff has no completed its investigation of the facts related to this action and has not yet completed its preparation for trial. Consequently the following BOPs are given without further prejudice to this answring party's right to produce, at time of trial, subsquently discovered evidence relating to the proof of facts subsequently discovered to be material.

It then says "In general, objection is made to all admissions because literal compliance would require responses that are burdensome and oppressive. This responding party will provide those responses that are responsively appropriate in an effort to comply with the proper obligations imposed upon them as part of the discovery."

------------------------------

This account was opened in 2001 according to a copy of the original signed application. The only dates of purchases shown are for 2006 and it ends in 2006 which would make the suit SOL. However they do show some sort of internal documents adding on a penalty in 2007 of over $1000. This is all so lengthy I don't know how to put it all in.

The last bit says RESPONSES:

1. tHE COMPLAINT IS BASED ON AN OPEN BOOK ACCOUNT AND QUANTUM MERUIT AND AN ACCOUNT STATED AND dEFENDANTS BREACH THEREON IN THE PRINCIPAL AMOUN OF OVER 4,000. tRUE AND CORRECT COPIES OF THE STATEMENTS pLAINTIFF IS CURRENTLY ABOE TO FURNISH ARE ATTACHED HERETO AS eXHIBIT i AND INCOMRPORATED HEREIN BY REFERENCE. pLAINTIFF RESERVES THE RIGHT TO PRODUCE MORE BILING STATEMENTS AS THEY BECOME AVAILABLE OR PRODUCE THEM AT TRIAL.

2. tHE BILLING STATEMENTS DEmonstrate a course of conduct wherein Defendant so and so repeatedlyu charged on a revolving charge acct issued by Plaintiff. Further, these statements demonstrate Defendant so and so's continuous failure to pay the indebedness incurred.

Help there's more but thats enough for now. I just went thru and checked and they only included 2 statements from 2006 and like 2 copies of them and thats it. It shows a payment for each statement that I made. Is this enough for them to win? Then they show an internal document with a big late fee over 1,000 added on to the bill in 2007 (when they claim the last transaction took place but I don't think there could be 1 late fee that equaled that so I am pretty sure that late fee is for all of 2007.

Edited by chiquita55
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And you're right; their response was evasive and inadequate at best. But just like I thought they're trying to saddle you with causes of action that require very little evidence.

If they're suing under open book account, then they MUST provide itemization from zero balance. Courts have ruled that BoP request is improper for account stated cause of action HOWEVER if you're also being sued under open book account then your request IS PROPER! Furthermore, as you see through their smoke and mirrors they've answered absolutely nothing. You need to ask Calawyer about an appropriate course of action because you can do two things:

1.Motion to compel since judge told you to do so.

2.Motion to exclude evidence based upon CCP 454.

I don't know if it's too late for them to amend their complaint but my concern was always that they'd amend their complaint to only account stated and quantum meruit and get rid of the open book part, but they haven't done that and likely won't. So you're in the right. And you still need itemization of the account from zero because of the type of account they're claiming it to be.Account stated is only appropriate when there is a fixed and agreed upon amount due. Clearly it is inappropriate to apply to this type of lawsuit.

Edited by rikkivs
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thanks for letting me know about my name. do you see any more occurences now?

None. But come to think of it, you might want to get both motions together because they're stalling you and don't have much of anything. They shouldn't be able to keep dragging this out. Listen first and foremost to what the judge said because he's running the show. And you back up everything you do with rules of procedure, rules of court,case law and attention to detail. Best Wishes:)

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And the weird thing is their lawsuit said that I broke the contract. I don't remember anything about 'acct stated'. Well I hope CA Lawyer comes in and tells me what to do next! All there is are 2 or 3 statements from the last year I used the card and then something from nov of 2007 (they are using that date as the date I stopped paying) but then saying that I had over $1,000 in fees for not saying so that cannot be the date I last used the card. If I used the card after Sept of 2006 then why didn't they provide those statements? I have a feeling I didn't and the case is SOL.

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they might have even put the wrong information down in their response to your BoP. Since I don't know what your original thread looks like, I don't have all your causes of action in front of me. But like I said before even if account stated is one cause of action, the OPEN BOOK ACCOUNT lends itself to an itemization of account from zero balance so your BoP request was proper. They are trying to shine you on. The good thing is that the BoP is self limiting and is seen as an elucidation of the pleadings. They cannot introduce evidence that was NOT contained in the BoP. So it serves to narrow the issues a bit. Since they're not providing anything but one statement from 2007, it's time to hit them very hard. If Calawyer doesn't respond within 48 hours, I'll do a bit of research on these matters. Best wishes.

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Thank you. I was hoping to get more responses. What are 'causes of action'? Thats how lost I am. In their original law suit they said they were suing me for breaking my contract with them. That was their cause of action. The lawyer himself signed an affidavit that he could testify about what I owed but all I received are:

2 statements in duplicate from june/july 2006 and aug/sept 2006 (NOT 2007) AND some sort of internal sheet that was produced in Nov of 2007 saying that I owed this debt and they added on over $1,000 in penalties with no information on how they calculated over $1,000 in penalties. They claim I last paid in Nov of 2007 and I think they are lying as this paper shows penalties of over 1,000 bucks added on in Nov of 2007 so I cannot have been paying up til then. I need to find out if they are lying and breached the Statute of Limitations and trying to make it look like to the court that I paid in Nov of 2007 (thats what they state but if I did how could they have added on a penalty of over 1,000 bucks? I want to sue them!! or find a lawyer that will! I need to find out when I last paid but they won't turn over the goods (I wonder if they even have them. I swear this is not the OC suing me. I think thats a lie too. Otherwise why didn't they turn over all the billing as I asked them to??

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Here is a copy of what I asked for in the BOP I sent the lawyer for Cap One:

In particular, demand is made on you to provide: [check all that apply]

a. • Copy of the instrument upon which the alleged account is bases, ie,

contract..

b. • The specific charges for the services.

c. • ITEMIZATION of the account from ZERO balance; including all debits and

credits against the alleged account, including interest rates per

transaction, dates of transactions.

d. • Any modifications to terms and conditions over course of the account.

e. •A copy of the contract from Capital One giving Patenaude & Felix

the right to collect the debt

f. •I would like to know if Patenaude & Felix purchased the alleged

account from Capital One and if so, for how much.

-------------------------------------

As you can see I hardly got any of that info back.

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You need to check your Summons they sent you. Look on page PLD-C-001(2), should be titled Cause of Action- Common Counts. See if they have checked box CC-1, a. (1).

If they have not checked this box, it is a straight "Account Stated" claim against you which means they checked box, CC-1,a (2) which states "because an account was stated in writing by and between plaintiff and defendant in which it was agreed that the defendant was in debted to plaintiff.

If this is the case they don't have to provide information to your BOP.

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My papers say COMMON COUNTs checked but there is no box CC-1, a (1) or any other boxes to check or not check. There is no CC there to click on or not. It says

Breach of Contract (not checked)

common counts (checked)

other (not checked)

below that it says other allegations and they state that they warned me before hand that they would file this suit (they didn't tho).

thats it. My pleading paper says PLD-C-001-(20)

OH, IT IS ON NEXT PAGE! Open book account (a) is not checked.

2 is checked stated in writing between plaintiff and defendant

So what does this mean and what would you do now? Does that mean they don't have to prove anything??? All they attached were 2 statements that would show this acct was SOL.

Do you think I should go over to that other forum and file for arbitration???

You need to check your Summons they sent you. Look on page PLD-C-001(2), should be titled Cause of Action- Common Counts. See if they have checked box CC-1, a. (1).

If they have not checked this box, it is a straight "Account Stated" claim against you which means they checked box, CC-1,a (2) which states "because an account was stated in writing by and between plaintiff and defendant in which it was agreed that the defendant was in debted to plaintiff.

If this is the case they don't have to provide information to your BOP.

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'1. tHE COMPLAINT IS BASED ON AN OPEN BOOK ACCOUNT AND QUANTUM MERUIT AND AN ACCOUNT STATED AND dEFENDANTS BREACH THEREON IN THE PRINCIPAL AMOUN OF OVER 4,000.'

You are entitled to a BoP via the open book account causes of action. Their BoP says these are the causes of action against you, in addition to account stated. Yet according to the summons they're only suing you on account stated. The two documents seem to contradict one another unless you've misread or mistyped something.

The issue here is that defenses against account stated and quntum meruit need to be worded in a specific way. My concern is that if you didn't answer the summons with the proper affirmative defenses to these causes of action, that you might have waived them. I need to see how you answered the summons. But like I said the BoP answer does not seem to be consistent with their summons. That is how sloppy they are.

In addition, you have to conduct discovery to get to the bottom of this. Either way, account stated is not appripriate for this type of suit because whatever amount they're suing you for must have been fixed AND agreed upon, you should have received statements in the regular course of business as well. Showing you a duplicate set of statements from one year then another statement from another year with inexplicable fees in insufficient to establish much of anything! Furthermore, one of the key components of account stated is that the parties had prior course of dealing and the account stated is based upon a previous, underlying express contract .

You need to resubmit your BoP request with some new verbiage. If their cause of action is account stated, then you need a copy of the previous express contract under which the alleged stated account is based. This contract needs to show terms and conditions, interest rates for transactions, and an itemization from zero balance. They will still have to show that you defaulted subsequent to an express contract, and that the account was charged off. They will also have to show that after chargeoff no new fees were accumulated and that the balance due became fixed AND agreed upon.

This is a huge burden for them because they're still going to have to provide you with what you asked for in the beginning. Send Calawyer a PM to ask about this strategy and look at others responses. Best wishes.

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As I suspected based on my dealings with them, they are suing you on one claim that is "Account Stated". This means BOP is not something they have to worry about as CCP 454 doesn't apply to Account Stated claims.

Here are your options-

1. Continue in court which means you will have to beat their MSJ filing, just to get to trial. This for pro se is not easy and a ton of paper to file with lot's of techincal rules on how to respond. If you do beat MSJ, then you will still need to go to trial, as I recall you are in their area, so they will show up with some type of witness.

2. Use the arb strategy and get them out of court and make them pay between $5-$10 dollars to a private firm in costs to them that they can't recover. Consumer Rule # 8 in JAMS, "In California, the arbitration provision may not require the consumer to pay the fees and costs incurred by the opposing party if the consumer does not prevail."

So no matter what it costs them to win in arbitration, they can't recover those costs, which means they will likely want to settle...

The choice is yours...

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When you say $5 to $10 do you mean $5,000 to $10,000 ??? Because that is more than what they can get. The suit is only for $4,000. Why would they want to pay out that? Let me know. It is looking more and more like I shoudl go to arbitration. What do you think of Rikkivs comments?

One more thing, this acct may be SOL. How can I find out for sure the SOL on this acct?? Is it the last day I paid on it or is it established some other way? If it is SOL then I wouldn't have to go to arbitration.

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Rikkivs Here are the defenses I answered their summons with:

{Affirmative Defenses:

1. Plaintiff has failed to state facts sufficient to state a cause of action against Defendant.

2. Plaintiff is barred by the statute of limitations (even tho I don't know that its true and it probably isn't)

3. Plaintiff lacks standing to bring this action.

4. Plaintiff is barred by the doctrine of estoppel due to Plaintiff's acts and/or omissions.

5. Plaintiff's recovery would unjustly enrich Plaintiff at the Defendants expense.

6. Plaintiff failed to perform under the agreement with Defendant.

7. Plaintiff failed to perform all conditions precent.

8. Plaintiff's acts and or omissions violate the Rosenthal Act & Fair Debt Collections Practices Act.

Defendant reserves the right to amend, modify, supplement, and otherwise change this answer and the foregoing affirmative defenses based upon legal theories, facts and circumstances which may become known after discovery and further analysis of the case.

Plaintiff supplied no proof that Defendant signed for or authorized each of the amounts owed or proof of amount owed. Plaintiff supplied no contract signed by the Defendant to show a contract existed.

Other: Defendant's only income is a small $902 a month social security disability check. Defendant is a single disabled lady. Defendant has no assets or money other than a 1973 mobile home that is lived in by defendant and is homesteaded. Defendant is on Medi-cal and Section 8. Defendant does not understand this lawsuit as the State will take whatever assets are left after my death.}

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Ok. Deep breath here.

1. There is no issue about whether your BOP was proper. It doesn't matter if plaintiff has asserted one cause of action that would NOT require it to respond to a BOP (account stated). There are two causes of action that would require a BOP response (open book account and quantum meruit). Plaintiff admits as much when it goes on to respond.

2. The response is insufficient. Plaintiff should have this information when it files the complaint. Otherwise it has no good faith basis to assert a claim against you.

3. You need to file a motion with the Court. Technically, in California, there is no requirement that you meet and confer before filing a motion for a further BOP. But it is SO much like a discovery motion (where meeting and conferring IS required), I suggest you do so.

4. Do your Meet and Confer in writing. Fax them a letter such as the following (edited for accuracy if necessary as I have not seen the documents produced or the entire response):

Dear ____

On ____, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof." As described below, plaintiffs’ response is entirely deficient.

As a preliminary matter, plaintiff’s objection to Defendant’s Bill of Particulars is not well taken. Plaintiff has alleged a cause of action for Open Book Account and for Quantum Meruit. A Bill of Particulars is appropriate under each of these legal theories as plaintiff concedes in ultimately responding.

The response served, however is not sufficient. Plaintiff has not provided an itemization of the account showing all charges and credits thereto. It has not provided the underlying contract referred to in the complaint. Nor has it provided any contract of assignment of the claim at issue in this litigation. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit. Indeed, the only account statements plaintiff has provided demonstrate full payment of the amounts requested.

Please serve a full response on or before [insert date 10 days from date of letter]. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial.

Good luck

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Thank you CA Lawyer. I will type up this letter (you do not think I should file the letter with the court or mail the letter with a proof of mailing?

One further question. You stated this in the letter: *Indeed, the only account statements plaintiff has provided demonstrate full payment of the amounts requested. *

I don't understand that part. Are you saying the statements show that I paid the full amount of the bill? If so the statements don't show that. They just show that I made a payment on the bill and the bill was about 2900. then they go up to 1 year later in Nov of 2007 and show an internal document that shows a penalty of $1,063. I do not understand this 'penalty' document. If you want me to type it out here I think the document may show the amount the plaintiff is asking for (over $4,000). I think thats why they typed up this Cap One document but if its true I last paid in Sept of 2006 then the SOL has run its course. I have a feeling they do not have the right to collect on this acct and they are using the Nov 2007 date as the last date of activity but the activity was not by me but Cap One. That seems illegal to me.

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Calawyer's note was a guideline for what you might say. If you don't understand one of the sentences there, then phrase the issue of concern in your own words. Calawyer was giving you some important points to raise. And since their BoP was so substandard, this might become contentious. I think it prudent to send your letter with a proof of service. You could file it with the court if they allow it, but if not, keep the letter and proof of service for your records anyway. Best wishes:)

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The clerk let me file the BOP with the court even tho I told her it said I wasn't suppose to (supposedly no discovery or bops need to be filed with court) but she insisted on filing it anyway and putting it in my file. I was only filing the proof of mailing. Do I need to put some sort of case law in there? what is this case law they are using?

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Perhaps the clerk was doing you a favor because he or she knew that sometimes the plaintiffs are so disorganized that papers are lost etc. But if the paper is filed with the court and proof of service associated with it, your bases are covered. As to case law, you aren't obligated to put any case law down in your letter. You're letting them know that CCP 454 allows you to get a BoP and that they need to respond. Do some research on the vocabulary you are using though. Don't type anything that you don't understand because should the judge question you, it will be difficult to answer him or her if you don't know what you've written. Know what I mean? Please look up the threads on meeting and conferring so you can see what this is all about. You meet and confer via telephone but to initiate the conference you send them this letter. If they don't respond to the letter to set up a conference within ten days or whatever it was, then you do a motion to compel like the judge told you. Then followup with a motion to exclude evidence. Meanwhile get some discovery requests together.

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Well this BOP basically is my discovery (I think CA Lawyer hit on all my BOP points). Is there something else I should be asking for in Discovery? They sent a copy of my original signed applications (just a little small brochure I signed that basically had no info on it (no interest rates or anything but it did have my signature).

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The reason I told you to edit for accuracy if necessary is that I have not looked at the BOP or the documents produced and am just going from your description which I may not have understood correctly. I did think you were saying that the two documents produced showed you had paid the full amounts required in each billing period. If that is incorrect, take it out. Is really is beside the point and I included it only because I thought it would make you look good in front of the judge ("the only statements plaintiff has provided, your honor, show that I paid what was requested, not that I failed to pay").

You will send this letter to plaintiff's attorney or fax it if possible. If you send it by mail you should probably give the plaintiff a few extra days to respond. You should not file the letter with the Court.

When the plaintiff fails to give you any further documents, you will file a brief motion for further BOP response and/or to preclude evidence. The motion will be supported by your declaration which generally will say you served a BOP, plaintiff responded, you wrote and told them to supplement, and plaintiff didn't do so. The BOP, response and your letter will all be attached as exhibits. Folks here can help you with exemplars.

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ok thanks. as to regards to the 2 statements, they did show I paid on the bill but only a small amount of the bill (prob minimum payment or a little more). there was still a balance on the bills for both months. They used those 2 statements to show I owed close to $3,000 and then that last form was just typed on a piece of blank paper (they could have just made it up themselves for all I know) showing a $1,063 penalty add on in Nov 2007 to come up with the 4,000. However there is a whole year before that where they show nothing. Anything could have happened in that year. I really think the case is an SOL case that I could win with. I am also going to look into that angle.

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