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Is it too late for me to send a BOP?


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I'm being sued by amex. I've filed an answer to the complaint, and sent their attorney Form Interrogatories. The complaint is for common counts seeking damages north of $14K according to proof.

They also included in the complaint under "Other Allegations:" that before commencement of the action, that they informed me in writing their intent to file action. THIS ALLEGATION IS ENTIRELY UNTRUE.

The cause of action has box CC-1 a.(2) checked- "because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff" THIS TOO IS INCORRECT.

The cause of action also states unjust enrichment.

The case has been automatically sent to Arbitration.

Is it too late for me to sent them a BoP?

I've prepared special interrogatories as well as a request for production of documents, but have yet to mail them.

I've read so many posts that I'm overwhelmed and could use some advice as far as what steps I should take. :confused:

Please help!

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This is the BoP I'm going to send. I would appreciate any feedback

To PLAINTIFF ____________ and its attorneys of record herein:

DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ____________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for money lent or paid of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account. Please also provide written contract and written agreement between Plaintiff and Defendant referred to in the complaint

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I read somewhere that I should file the BoP with the court to help support a MSJ in the future. The clerk would not file it because he said it was considered part of Discovery.

Is there anyway I can get around this?

Any proof that shows I have attempted to dispute and resolve the claim will should help as I anticipate the Plaintiff/Lawyers will attempt to dodge and object to most of my Interrogatories, Request for Production of Documents and Request for Admissions

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print out the statute and take it with you. also file their responses. don't argue with the clerks just have them stamp it and file it. It is not discovery.

I think everyone should do this too. The BoP is basically the only good thing for the defendant and plaintiff's are trying to push it off the cliff. educate the clerks by giving them the CCP 454 statute and telling them that there will be further action in the near future.

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print out the statute and take it with you. also file their responses. don't argue with the clerks just have them stamp it and file it. It is not discovery.

I think everyone should do this too. The BoP is basically the only good thing for the defendant and plaintiff's are trying to push it off the cliff. educate the clerks by giving them the CCP 454 statute and telling them that there will be further action in the near future.

I was completely under the impression that a BOP is treated like discovery because it is part of discovery. Very interesting.

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print out the statute and take it with you. also file their responses. don't argue with the clerks just have them stamp it and file it. It is not discovery.

I think everyone should do this too. The BoP is basically the only good thing for the defendant and plaintiff's are trying to push it off the cliff. educate the clerks by giving them the CCP 454 statute and telling them that there will be further action in the near future.

Very good thinking Seadragon, but in my view it is not worth the fight. There are cases that say the bill of particulars furnished by the plaintiff is treated as an “amplification” of the pleadings. But the request itself is very much like discovery and that is why the clerks don't want to file it. When the plaintiff does not respond (or furnishes an insufficient response), you will show it to the court as an exhibit to your motion to compel.

Now, if you ever got a good response to a BOP, you might want to ask the court at a CMC to permit it to be filed as it amplifies the complaint.

Edited by calawyer
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I sent the BoP yesterday. Should I go ahead and send my Special Interrogatories, Request of Production of Docs and Request for Admissions ASAP, or should I wait for the BoP to be answered?

I would think sending everything as soon as possible would be best, but its difficult to derive Special Interrogatories regarding an Account Stated Complaint with no information aside from the amount of money they claim I owe.

Should I hold off on the Special Int. & just send the Demand for Production of Documents along with the Request for Admissions?

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I sent the BoP yesterday. Should I go ahead and send my Special Interrogatories, Request of Production of Docs and Request for Admissions ASAP, or should I wait for the BoP to be answered?

I would think sending everything as soon as possible would be best, but its difficult to derive Special Interrogatories regarding an Account Stated Complaint with no information aside from the amount of money they claim I owe.

Should I hold off on the Special Int. & just send the Demand for Production of Documents along with the Request for Admissions?

You are on fire! I would wait the ten days plus five for mailing to receive the BOP or some type of response before I sent off discovery. If the BoP is an amplification of the pleadings, then you have to see what it says before you can craft meaningful discovery questions.Remember that what they furnish in their BoP LIMITS what they can introduce at trial. I've been thinking lately that if a BoP is inadequate and woefully so, that in some cases it might make sense to wait it out then slam the party at trial...

On the other hand, if you judge treats a BoP like a normal discovery request, you might end up having to do a motion to compel. If you don't receive something within the next few days, leave the attorney of record a voice mail and tell him that you you guys need to meet and confer. They will likely not get back to you. Record each time you call and each message content you leave. This will help further down the line...

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the documents you really want like the forward flow purchase agreement between their bill of sale parties and them, The actual purchase order for the accounts that the bills of sale alludes to with no redaction, orginizational chart for them outlining managers, directors, assistant managers and departments,

That will get them then a few days later use form interogatories to find out who knows what don't go crazy just a few. a week later request for admissions 5.

You get the picture, also be specific if possible about the documents.

This will kinda not allow them to boiler plate it. Then motion to compel after you have 20 requests. then prep your CMC statement.

I have been reading up on written depositions maybe we should be doing this also because you can use the testimony in motions and such. Any thoughts on that?

If you are going into artbitration you don't want to get too far into discovery. Form interrogatories for names of people with knowledge.

Edited by Seadragon
remembered the tentative ruling i read
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the documents you really want like the forward flow purchase agreement between their bill of sale parties and them, The actual purchase order for the accounts that the bills of sale alludes to with no redaction, orginizational chart for them outlining managers, directors, assistant managers and departments,

That will get them then a few days later use form interogatories to find out who knows what don't go crazy just a few. a week later request for admissions 5.

You get the picture, also be specific if possible about the documents.

This will kinda not allow them to boiler plate it. Then motion to compel after you have 20 requests. then prep your CMC statement.

I have been reading up on written depositions maybe we should be doing this also because you can use the testimony in motions and such. Any thoughts on that?

If you are going into artbitration you don't want to get too far into discovery. Form interrogatories for names of people with knowledge.

The OP should benefit from all of these perspectives.

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The OP should benefit from all of these perspectives.

Most posters come here and think how can I make it go away quickly, well thats not gonna happen so you have to fight long term.

If you attack the things they fear like making their ratings go down. Or you threaten their defaults with exposure of the affidavit abuse in defaults, then you make it go away.

I think everyone should as part of their answer make an injunction motion to preclude affidavits, or with your answer to file counter claims and move the case up to unlimited then you can do real discovery.

When I was in the service The art of war was required reading. That comes in handy. The weakest link in plaintiff's cases are the judges who let the winds of discretion bully pro se defendants. If the judge looks like he doesn't like pro se defendants then find a reason to move the case.

These are all things to think about when getting ready for trial.

onw more thing research motions to vacate defaults and such and find if other courts in the state ruled against the affiants knowledge. Then hammer the case to them

Edited by Seadragon
one more thing
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Most posters come here and think how can I make it go away quickly, well thats not gonna happen so you have to fight long term.

If you attack the things they fear like making their ratings go down. Or you threaten their defaults with exposure of the affidavit abuse in defaults, then you make it go away.

I think everyone should as part of their answer make an injunction motion to preclude affidavits, or with your answer to file counter claims and move the case up to unlimited then you can do real discovery.

When I was in the service The art of war was required reading. That comes in handy. The weakest link in plaintiff's cases are the judges who let the winds of discretion bully pro se defendants. If the judge looks like he doesn't like pro se defendants then find a reason to move the case.

These are all things to think about when getting ready for trial.

onw more thing research motions to vacate defaults and such and find if other courts in the state ruled against the affiants knowledge. Then hammer the case to them

I think you have a point. We have endured this madness over the same case twice now. I do think countersuing makes sense. Sometime around 2009 when I first joined this group, I came across a thread where someone said that Midland drops all suits if you countersue. I don't know if that is still true but it does verify the fact that usually they don't have enough admissible evidence to prevail. What I'd like to know is if there are any cases where a countersuit bit the debtor in the a$$.

We're being sued by an alleged OC now and we are thinking of countersuing big time. If you know the CA RCP specifically about countersuing please share here for our benefit. Meanwhile I'll look up some stuff to explore the possibility further. It seems like countersuing can be a strong tool to use at least sometimes anyway.

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I think you have a point. We have endured this madness over the same case twice now. I do think countersuing makes sense. Sometime around 2009 when I first joined this group, I came across a thread where someone said that Midland drops all suits if you countersue. I don't know if that is still true but it does verify the fact that usually they don't have enough admissible evidence to prevail. What I'd like to know is if there are any cases where a countersuit bit the debtor in the a$$.

We're being sued by an alleged OC now and we are thinking of countersuing big time. If you know the CA RCP specifically about countersuing please share here for our benefit. Meanwhile I'll look up some stuff to explore the possibility further. It seems like countersuing can be a strong tool to use at least sometimes anyway.

I have been thinking the same thing. I am looking into filing a counter-suit, but need to do some research under what grounds would be most appropriate. I'd appreciate any suggestions people may have.

These clowns have intentionally been vague, uncooperative and lazy in regard to their Complaint.

Their lawyers have been extremely unprofessional, insulting and condescending when we've spoken, not to mention the fact that I've caught their "telemarketers" lying to me by making contradictory claims and threats over the phone.

Although their interactions with me may not be grounds for a lawsuit, the conduct under which they run the chop shop they refer to as a law office has been unethical to say the least.

I'm planning on filing a complaint with the California BAR Association once this Complaint is resolved.

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It's like our states version of the FDCPA but you can file the suit in state court rather than trying to traverse the federal system pro se. If they've made false and misleading statements to collect the debt, that seems like reasonable grounds to sue. Intentional FRAUD and FRAUD in the inducement are reasonable causes of action I'd imagine but that should be further investigated. Also if they've been so non cooperative, why not counterclaim with an abuse of process suit? Again you will have to investigate how to draft such a pleading but from where I stand if someone sues you and doesn't attach a shred of evidence, then acts funny when you ask them to justify the amount they're suing for, something is amiss. I am feeling what you are putting forth;)

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This one is good if the have forged signature on a credit application. It was a successfulMalicious Prosecution case(these very rarely get found for plaintiff/cross-plaintiff)

Arcaro v. Silva & Silva Enterprises Corp., 77 Cal. App. 4th 152 (Cal. App. 2d Dist. 1999)

A bunch of cases for Intentional Infliction of emotional distress

UCL17200 claims

pick rosenthal claims

If they take money out of your account, Conversion

If they destroyed evidence spoilation

If the attorney calls you an ashhat B&P code(in court is contempt please remember that when you are in the courthouse)

If they said you were going to be arrested, impersonating an officer(I haven't heard anybody get that one. if you have a recording the police will definately want to get involved)

Interference with employment relations(calls to work and such)

interference with religious freedom(calls on your holy day whichever is best)

and finally Injunction from filing affidavits in the state(get state AG involved)

these are things to think about because if you have no leverage they won't make a deal. Please watch Battlefield Earth for inspiration.

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It's like our states version of the FDCPA but you can file the suit in state court rather than trying to traverse the federal system pro se. If they've made false and misleading statements to collect the debt, that seems like reasonable grounds to sue. Intentional FRAUD and FRAUD in the inducement are reasonable causes of action I'd imagine but that should be further investigated. Also if they've been so non cooperative, why not counterclaim with an abuse of process suit? Again you will have to investigate how to draft such a pleading but from where I stand if someone sues you and doesn't attach a shred of evidence, then acts funny when you ask them to justify the amount they're suing for, something is amiss. I am feeling what you are putting forth;)

Does the attorney filing the complain need to personally sign the Civil Case Cover Sheet, the Complaint and the Declaration of Venue? I've noticed that the three signatures are perfectly identical down to particular ink blotches. Its clearly a stamp or a digital signature. Any idea if this is legal? Could it be linked to the "robo-signing" scandals that have taken place within the housing market?

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I would think sending everything as soon as possible would be best, but its difficult to derive Special Interrogatories regarding an Account Stated Complaint with no information aside from the amount of money they claim I owe.

Excuse me for butting in but I've learn in my state and some others through caselaw that "Account Stated" is the mutaully agreed to fixed amount that both parties has signed off on and cannot refer to CC debts because the amount due can change by charge, fee or payment as well as the interest rate. It may be that you can use something like this for an added defense. Be Blessed! S.A.
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Does the attorney filing the complain need to personally sign the Civil Case Cover Sheet, the Complaint and the Declaration of Venue? I've noticed that the three signatures are perfectly identical down to particular ink blotches. Its clearly a stamp or a digital signature. Any idea if this is legal? Could it be linked to the "robo-signing" scandals that have taken place within the housing market?

GDS sure there is certainly a connection. After all how can one person sign on information and belief if they file THOUSANDS of cases each year? Our banking system is systemically broken for these types of abuses to exist and be fortified by our legal system!

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You are on fire! I would wait the ten days plus five for mailing to receive the BOP or some type of response before I sent off discovery. If the BoP is an amplification of the pleadings, then you have to see what it says before you can craft meaningful discovery questions.Remember that what they furnish in their BoP LIMITS what they can introduce at trial. I've been thinking lately that if a BoP is inadequate and woefully so, that in some cases it might make sense to wait it out then slam the party at trial...

On the other hand, if you judge treats a BoP like a normal discovery request, you might end up having to do a motion to compel. If you don't receive something within the next few days, leave the attorney of record a voice mail and tell him that you you guys need to meet and confer. They will likely not get back to you. Record each time you call and each message content you leave. This will help further down the line...

I received the response to my BoP request. The general objections they gave me include:

BoP is inappropriate because and Account Stated cause of action is deemed to have merged the various items on which the earlier accounts are based, i.e., there is nothing left to itemize.

they also say section 454 is not applicable to a contract or a promissory note which has an account for its consideration.

The response then states....Defendant __________ is strictly limited to Unjust Enrichment cause of action.

The responses go on to state:

1. "the complaint is based on quantum merit, and an account stated. etc.." They included a single billing statement which simply shows the amount they are claiming, with no transactions included

2. "the billing statements demonstrate a course of conduct wherein Defendant _______ repeatedly charged on a revolving charge account issued by Assignor OC Plaintiff. Further, these statements demonstrate Defendant _______ continuous failure to pay the indebtedness incurred."

3. "Plaintiff reserves the right to produce other evidence as it becomes available, including, but not limited to, records kept in the ordinary course of business"

What are my next steps? FYI... In the original Complaint they claim Common

Counts (they did not include breach of contract)

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You still are entitled to see how they came to sue you and why. Sending someone a single billing statement is insufficient to show that you owe them a dime! Fire off some discovery and send them a meet and confer telling them that their BoP is inadequate. YES it is true that account stated does not lend itself to a BoP request. HOWEVER since they are also claiming unjust enrichment, a BoP request is proper.

Now bear in mind unjust enrichment has pretty low evidentiary requirements as well. They simply have to show that you used monies/property that they lent to you at your request and you defaulted on the terms of your agreement with them. They don't have to show terms and conditions of a written contract to prevail on this cause of action and they might invoke partial performance which is that you were unjustly enriched based upon your behavior in using the revolving account.

In these cases you can attack them on several fronts. Firstly send off that meet and confer letter and secondly calendar a motion to compel further BoP. Thirdly send off some discovery of your own! Good luck and keep us posted. I think Calawyer can further elucidate strategies in your case.

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...not to mention the fact that I've caught their "telemarketers" lying to me by making contradictory claims and threats over the phone.

If you've got any of that on tape, you can counterclaim for both FDCPA violations and Rosenthal FDCPA violations.

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