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Cap 1 attorney strikes back...is it legal?


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Hi all,

Awhile back, I asked for some assistance when I was sued by Capital One. Well, I took all of the necessary steps (filed my answer CMRR within the 30 days) and even sent the attorney a BOP (which was never answered).

well today, I received a notice from the attorney for a request for entry of default judgment against me! How can they even do that when I filed my answer (and have obvious proof of it)? I did the proof of service and sent a copy to them too (also CMRR), so it's not like they didn't know I filed the answer.

This is the first contact they've made with me since the summons...no trial date, settlements or anything. Also, I filed in my answer that they were suing me in the wrong venue, and they still sent the default request to my previous address in the wrong county, like they didn't bother to read it at all.

So, what should I do at this point? I plan to call the court on Monday to see if they actually filed for default, but is there anything else I need to be doing?

Thanks again guys!

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How long ago were you served? How long ago did you serve your BoP demand? Here are a few facts:

1.They expect defaults 95% of the time. They don't read the answers to the summons and really don't care. The default judgment packet they sent out was an example of how this is a numbers game to them.

2.You need to do a meet and confer with them ASAP! Most judges want the parties to meet and confer before motions are granted but if the Plaintiff refuses to meet with you and honor your requests, they are being a difficult party and ex parte motions can be justified.

3.To address this efficiently, you need to send them out a letter CMRRR stating that if they do not respond to your BoP demand within ten days, you will move to have evidence excluded via CCP 454. In the letter state a time that you are available to discuss this matter on the telephone and give them your phone number. Chances are they will not contact you and they will not respond to your BoP demand. This is good for you because it sets you up as the guy or gal who tried to work this out amicably and if they don't respond to your meet and confer note then you can do an ex parte motion in limine to exclude evidence not provided in the BoP.

Have you had the case management conference yet?

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I would also answer their motion showing that according to your answer, there is a question that the courts need to decide. The above poster is correct in stating that they probably send these out for everyone, including those who do answer the summons in hopes of tripping them up for an easy default judgment.

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Hi all,

Awhile back, I asked for some assistance when I was sued by Capital One. Well, I took all of the necessary steps (filed my answer CMRR within the 30 days) and even sent the attorney a BOP (which was never answered).

well today, I received a notice from the attorney for a request for entry of default judgment against me! How can they even do that when I filed my answer (and have obvious proof of it)? I did the proof of service and sent a copy to them too (also CMRR), so it's not like they didn't know I filed the answer.

This is the first contact they've made with me since the summons...no trial date, settlements or anything. Also, I filed in my answer that they were suing me in the wrong venue, and they still sent the default request to my previous address in the wrong county, like they didn't bother to read it at all.

So, what should I do at this point? I plan to call the court on Monday to see if they actually filed for default, but is there anything else I need to be doing?

Thanks again guys!

what is a BOP?

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I was served in person on March 17th. The attorney received my BOP request on March 21st, and the copy of the Answer on April 15th. I also filed a copy of the BOP with the court, and stated that they had not responded to me within the 10 days.

So now, I'll send off the second BOP with the extra warning that if they don't answer, or agree to confer and meet, I'll file the motion to exclude evidence.

I have not had a case conference yet. I haven't heard a single word from them or the court. When I check the status of the case online, it doesn't say anything about trial dates or pending actions. A whole lotta nothing.

When I checked the court website, it said that the plaintiff is required to inform the defendent of any trial dates or settlement conferences. Is this true?

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Does the Court docket show that your answer has been filed? Did you file it with the Court? If so, don't worry about the request for default. The Court will reject a request for default if an answer is on file.

Assuming there is no problem with the answer, you need to send them a letter meeting and conferring about plaintiff's failure to respond to your BOP. Here is an exemplar. I would send this anytime after about 20 days have passed since you served the BOP:

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." More than 10 days have passed, but plaintiff has failed to respond to defendant's request.

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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Thanks Cal for the reply!

Yes, the court received my Answer. I had them send me back copies of all the time/date stamped papers that were filed, so I have everything.

I just wrote up the second BOP based on what you laid out, and I'm sending it off tomorrow. I'll keep the board posted on any significant updates with the case.

Thanks again everyone!

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If I was in this situation I would object to there motion for default and also motion for an order from the court that they begin properly serving you, rather than using an incorrect address. In that motion tell the court that you have advised plaintiff of your correct address, yet they continue to attempt service of process at the incorrect address. Don't say previoous address, just incorrect address. This will draw attention they do not want to them.

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Does the Court docket show that your answer has been filed? Did you file it with the Court? If so, don't worry about the request for default. The Court will reject a request for default if an answer is on file.

Assuming there is no problem with the answer, you need to send them a letter meeting and conferring about plaintiff's failure to respond to your BOP. Here is an exemplar. I would send this anytime after about 20 days have passed since you served the BOP:

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." More than 10 days have passed, but plaintiff has failed to respond to defendant's request.

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.

Nice - thanks for this.

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Thanks Cal for the reply!

Yes, the court received my Answer. I had them send me back copies of all the time/date stamped papers that were filed, so I have everything.

I just wrote up the second BOP based on what you laid out, and I'm sending it off tomorrow. I'll keep the board posted on any significant updates with the case.

Thanks again everyone!

Well done.

For everyone in California, I want to point out that this is the proper procedure for filing an answer (and other papers). If you go to the Court to file it yourself, bring an extra copy for the Court to stamp and bring it back for your files. If you send it to the Court for filing (riskier), include a SASE and ask the Court to send you back an endorsed-filed copy. The endorsed-filed copy is how you prove that your answer or brief was filed on time.

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Well done.

For everyone in California, I want to point out that this is the proper procedure for filing an answer (and other papers). If you go to the Court to file it yourself, bring an extra copy for the Court to stamp and bring it back for your files. If you send it to the Court for filing (riskier), include a SASE and ask the Court to send you back an endorsed-filed copy. The endorsed-filed copy is how you prove that your answer or brief was filed on time.

I'm in IL but this is what I did, too. I never mailed mine in, I always went to the court in person and took extras for the clerk to stamp for me. That way I knew positively that it was filed and I had the proof in my hand right away.

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I'm in IL but this is what I did, too. I never mailed mine in, I always went to the court in person and took extras for the clerk to stamp for me. That way I knew positively that it was filed and I had the proof in my hand right away.

Exactly.

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  • 3 weeks later...

An update:

I sent off the second BOP on 5/19 and received no response. I did, however, get a ridiculous letter from them today. It said "confidential settlement offer" at the top, then preceeded to talk about wanting to settle out of court...for the entire amount owed...attorney fees and everything! That's hardly a settlement.

Anyway, not a signle metion of the BOP or anything in answer to it. So at this point, I want to file the motion to compel BOP...I think Calawyer metioned it in another thread too, but I'm not sure if there's a specific format for that or what. Anybody have an example, or a place to find one?

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good call, here is the response im going with. thanks again calawyer.

Meet and Confer letter.

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 the Bill of Particulars is not well taken. Plaintiff has alleged causes 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, consisting of just one billing statement with no name or address, 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. The only account statement plaintiff has provided demonstrates nothing, and would not provide plaintiff with a good faith basis to file this suit.

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.

.
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You'll need to file a motion to preclude their "evidence" if it has been longer than 10 days since you've sent the BoP to them. It's very clear in CCP 454.

This is basically like kneecapping them- if the judge sides with your motion, then there's no way for them to introduce evidence. More likely than not, the other side will blame a "clerical error." The fact that you've sent two shows they have a)no evidence, or B) have no intention of complying.

Also, think about round filing that "offer."

An update:

I sent off the second BOP on 5/19 and received no response. I did, however, get a ridiculous letter from them today. It said "confidential settlement offer" at the top, then preceeded to talk about wanting to settle out of court...for the entire amount owed...attorney fees and everything! That's hardly a settlement.

Anyway, not a signle metion of the BOP or anything in answer to it. So at this point, I want to file the motion to compel BOP...I think Calawyer metioned it in another thread too, but I'm not sure if there's a specific format for that or what. Anybody have an example, or a place to find one?

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Found a good example of the motion on the court's website.

I'm going to send it out tomorrow. Question...as with the Answer, do I need to file a proof of service with the court when I file this motion...or just send the attorney a copy of it?

I've gotten this far...I don't want to screw it up!

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Question...as with the Answer, do I need to file a proof of service with the court when I file this motion...or just send the attorney a copy of it?

First call the court an get a hearing date for your motion approx. 30 days away.

Mail a copy of the motion/proposed order/notice of motion hearing to the attorney along with an unsigned proof of service,

then have the POS signed and file everything with the court.

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Found a good example of the motion on the court's website.

I'm going to send it out tomorrow. Question...as with the Answer, do I need to file a proof of service with the court when I file this motion...or just send the attorney a copy of it?

I've gotten this far...I don't want to screw it up!

You need to do a proof of service. Also, pay attention to the notice requirements in CCP 1005(B) and make sure that the hearing date is far enough in the future to satisfy the requirements: CA Codes (ccp:1003-1008)

You need to do some counting and give yourself a couple of extra days in case you miss a day that the Court is closed.

Finally, I would appreciate your posting the motion and points and authorities when you are done. I am working with another poster on an exemplar but the more the merrier.

Good luck.

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Here's the link to the form. I'm still adding things to mine. Can I add a motion to dismiss on the same form, or does that have to be an entirely different form?

I don't have enough posts to put the actual link on here...so hopefully you'll get the idea...

courts.ca.gov/xbcr/partners/motinlim.pdf

Also, I don't have a hearing date set yet. I'm under the impression that either the court or the attorney is supposed to inform me of that. Otherwise, I guess I'll need to call and find out!

Edited by JessEA
Adding
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Okay, here's what I've got based on the form and what I've been able to track down in the forums.

SUMMARY OF RELEVANT FACTS

1.The factual issues in dispute in this case to which this motion is directed are as follows:

On March 21st, 2011, Defendant mailed to Plaintiff’s attorney a Demand for Bill of Particulars. On May 23rd, 2011, when no response or the Bill of Particulars was received, Defendant sent further correspondence to Plaintiff’s attorney restating the CCP 454 requirement of a 10-day response time for the Demand and requesting that all documents be provided prior to June 1st, 2011. Defendant further stated intention to request Motion to Exclude Evidence if Bill of Particulars was not provided. To date defendant has received no response from Plaintiff’s attorney or the Bill of Particulars in this matter.

The bill of particulars furnished by the plaintiff is treated as an “amplification” of the pleadings. As such, it has the effect of a pleading. Consequently, at trial, plaintiff is limited to the items and amounts specified in his or her bill of particulars. No additional items can be shown. See Baroni v. Musick (1934) 3 Cal. App. 2d 419, 421.

REQUEST TO EXCLUDE EVIDENCE AND LEGAL AUTHORITY FOR EXCLUSION

2. The Defendant, _______, hereby requests the following evidence be excluded:

1. Evidence of money allegedly owed by Defendant to Plaintiff.

Defendant served plaintiff with a Demand for Bill of Particulars on March 21st, 2011. Under Code of Civil Procedure section 454, and the holding in Vassere v. Joerger, 10 Cal.2d 689, 76 P.2d 656 (1983), the court has the authority to preclude plaintiff from presenting evidence of the alleged debt.

Furthermore, a party may not willfully avoid providing a Bill of Particulars merely because the facts are not within the party’s personal knowledge, see Burton v. Santa Barbara National Bank, (1966) 247 CA2d 427, 55 CR 529 where the Plaintiff failed to make reasonable efforts to take oral depositions to locate records from which the Bill of Particulars could be made.

Additionally, the Court has in its discretion to apply a statutory penalty against Plaintiff. It has been held that, when there has been a failure to deliver a Bill because of refusal or gross neglect, imposition of the penalty is in the trail court’s discretion. See McManus v. Larson (1932) 122 CA 716, 10 P2d 523, where the Plaintiff

completely ignored the Demand and the trail court granted defendant’s motion to preclude evidence.

See also Burton v. Santa Barbara National Bank, (1966) 247 CA2d 427, 55 CR 529 where the court held that a mandatory penalty must be imposed on Plaintiff’s complete refusal to deliver the Bill. Only in cases involving a mere delay in providing an adequate Bill can courts exercise discretion not to impose statutory penalty.

Dated:

DECLARATION

2. I, _______________________________________, am the [ ] Plaintiff [ ] Defendant.

(Your Name)

4. On March 21st, 2011, I served the [ ] Plaintiff [ ] Defendant with a Demand for Bill of Particulars, a true and correct copy of which is attached to this motion as Exhibit “A.” I received no response to the demand.

5. On May 23rd, 2011, I sent the [ ] Plaintiff [ ] Defendant a letter informing him of my intention to bring this motion to exclude evidence. A true and correct copy of my letter is attached to this motion as Exhibit “B.”

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Signed on ________________________________ at ___________________________________.

(Today’s Date) (City and State where you are signing)

________________________________________

(Sign your name)

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