Pride Acquisitions LLC

[Kobayoshi]

I attended my Mandatory Settlement Conference today and Pride Acquistions did not show. I waited through 2 calls plus 2 phone calls by the court clerk with no answer. The judge set up a OSC, Order to Show Cause for sanctions for January 25,th. I asked for a Dismissal with Prejudice and the judge said that I could not have at this appearence but that there will be other times to ask for one. The judge said that the court can not give legal advice so I would need to figure that out for my self. So, I have a OSC scheduled for 1/25/12, and a Motion to Compel on the same date and a Trial Confirmation on 2/15/2012. Can someone give me some advice on when and how to ask for a Dismissal with Prejudice? Thanks.

[1stStep]

Wait for the OSC hearing...the court will probably sanction them. Check the ules regarding filing an MSJ. If you've got time between the OSC and trial, I'd go for MSJ.

Also, if you took time off work, figure out how much in wages you lost. If you took a vacation day, then it's equal to one day's wages. Add this to your memorandum of costs.

[Kobayoshi]

I have a Motion to Compel and an OSC happening in court at the same time on 1/25/2012. I have a Trial Confirmation court date on 2/15/2012. At what time would I file a Motion for Summary Judgment and, how do I prepare one and what would I say?

[Kobayoshi]

At what time would I file a Motion for Summary Judgment?

[1stStep]

I might sneak it in a day or 2 ahead of the OSC hearing...

[legaleagle]

I'd have one in my folder when I went to the last scheduled hearing. If the judge rules in your favor and doesn't give the plaintiff any more breaks, drop it off at the clerk's office on the way out. There are plenty of samples on line, or CAlawyer can point you to one. Keep it simple, don't be too wordy, nobody wants to read a 35 page brief for a credit card case.

[calawyer]

At what time would I file a Motion for Summary Judgment?

The rules are found in CCP 437c. Summary Judgment motions are difficult to prepare and file. You must give 75 day's notice as well (80 if served by mail to a California address): CA Codes (ccp:437c-438)

As far as the OSC hearing is concerned, I would make a small stink about being hauled into court by a plaintiff who:

1. Won't produce documents required by the Code forcing a self-represented party to navigate the Court system and file a motions; and

2. Won't show up at Court-ordered proceedings and does not even have the courtesy to call you or the Court. You, on the other hand, had to take the day off from work, put the kids in day care, get a sitter for the dog, whatever the truth may be.

How is it possible that plaintiff can file a case against you and then ignore all of its discovery obligations as well as its obligations to the Court?

It is up to the Court what type of sanction it will levy, if any. The above may help guide the Court to the appropriate remedy.

Good luck.

Edited January 13, 2012 by calawyer

[Kobayoshi]

I went to court for my Motion to Compel and OSC.

The court imposed a sanction on the Plantiff of $1,000 payable to the court.

The court ruled that the motion of defendant to compel a bill of particulars is granted in part and denied in part: Defendant's motion is granted with respect to plaintiff's cause of action for breach of contract and plantiff is precluded from giving evidence in support of that cause of action. Defendant's motion is denied with respect to plaintiff's cause of action for account stated.

Trial is now set for February 15th, 2012.

The plantiff nor the plaintiff's lawyers have never showed up at any of the court appearences. They had a local attorney stand in for them at the case management hearing who did not have any information. He told the judge that he weas contacted that morning to just make an appearence. This is why the plantiffs were sanctioned $1,000.00.

I am not sure what this ruling means. Any advice on how to prepare for trial?

[1stStep]

Congrats...you got the court to hand out sanctions - and $1k...that's a pretty decent amount...

So they have precluded them from using any evidence against you for breach of contract- meaning that that allegation is pretty much dead in the water...

Their allegation of account stated is still alive though. You'll need to focus on that. They may try to do a CCP98 declaration - but I don't think they've got the time...have they submitted a list of their witnesses yet?

[Kobayoshi]

What can I do about the "Account Stated" aspect of the case? What is a CCP98? They have not submitted anythng so far, and definetly no list of witnesses.

[1stStep]

A CCP98 is a Declaration in Lieu of Testimony - it's basically an affidavit that many JDBs use to get "evidence" of the amount you owe...it's should have already been used by now, since they have to provide an address within 150 miles of the court where you can serve the person and have them appear.

If trial is set on February 15, then 20 days before trial would have been Jan 26. So the CCP 98 should have come sometime before the 26th.

My guess is they will attempt to bring in a witness (object) since they were not disclosed to you in advance -or they will attempt to use some sort of statement as "evidence"...

[Kobayoshi]

I appeared in court today for my "Trial Confirmation" hearing. The attorney for Pride Acquistitons fiannly appeared after missing 3 court appearences, the CMC, MSC and Motion to Compel that I filed to get a BOP. The attorney never gave me a BOP and was precluded from giving evedence in support of the "Breach of Contract" cause of action at our Motion to Compel hearing. Before my case was called the attorney came to me and told me that he had the BOP I requested and would I like to have it? I said "No" and moved away from him. The judge called our case and asked the attorney why he missed 3 previous court cases? He said it was an internal office problem and begged to be able to give me the BOP. The judge declined his request saying she had ruled on the matter and it was resolved. He asked again and she refused again. She then set the trial for the "Cause of Action" part of my case for 2/23/2012 and the attorney asked for a later date in April, the judge said no but did agree to change the date to 3/22/2012. When asked why the attorney needed more time he said that he was going to prepare a motion for Summary Judgement.

We are going to trial now just on the "Cause of Action" part of the case. The judge confirmed that Pride Acquisitions can not conduct any discovery on the matter. I do not understand the "Cause of Action" aspect of this case. What is this and how do I prepare for my trial? Thanks!

[1stStep]

The cause of action would be something like breach of contract or account stated.

Them being a JDB and all, I'd bet it's account stated.

Even with the change of the date, there's no way the Pride can do an MSJ...they're stuck going to trial. That being the case, they will probably send their CCP 98 Declaration to you...or if you want to be proactive, send them a CCP96 form.

[Kobayoshi]

Thanks for catching that, I meant "Account Stated" this is the cause of action we are going to trial for. What is "Account Stated?" Thanks.

[1stStep]

Account stated is a statement between a creditor and a debtor based upon a series of prior transactions that a particular amount is owed to the creditor as of a certain date...

Defending an account stated is tricky - but in your case, they have not produced anything in the way of "evidence..."

I think you should send over the CCP 96 form and lock them in...

http://forms.lp.findlaw.com/form/courtforms/state/ca/ca000196.pdf

[Kobayoshi]

thanks, I am doing that today, exactly 35 days before the trial.

[Kobayoshi]

I sent form CCP 96 to the Plantiff and they responded in time with the following documents:

-Plaintiff's First Set of Interrogatories Propounded on Defendant by Plaintiff.

-First set of Requst for Admissions of Truth of Facts and Genuineness of Docuents Propounded on Defendant by Plaintiff.

It says that I have 30 days to respond . My trial is March 22nd.

Also included in the package is:

-Credit card statements from 1/2008 to 7/2009

-Preliminary Applicant Info

-Affidavit of Sale dated 10/20/2011 and signed by a person in Florida

-Affidavit of Sale of Account by original Creditor dated 7/22/2011 and signed by a person in Delaware

-Certificate of Conformity dated 7/22/2011 and signed by a person in Delaware

-Proof of Service dated 2/27/2012 and signed by a person in New York.

The Plaintiff was precluded from giving evedence in the "Breach of Contract" cause of action but not in the "Account Stated" cause of action. I mailed the CCP 96 and the Plaintiff did get the above mentioned documents to me within 10 days.

Do I have to respond to the First Set of Interrogatories and the First set of Requst for Admissions of Truth of Facts and Genuineness of Docuents?

How do I defend my self at the trial? If the Plaintiff is precluded from giving eveidence in the Breach of Contract cause of action but permitted to do discovery in the Account Stated cause of action what is my down side?

[helpme]

I sent form CCP 96 to the Plantiff and they responded in time with the following documents:

-Plaintiff's First Set of Interrogatories Propounded on Defendant by Plaintiff.

-First set of Requst for Admissions of Truth of Facts and Genuineness of Docuents Propounded on Defendant by Plaintiff.

It says that I have 30 days to respond . My trial is March 22nd.

Do I have to respond to the First Set of Interrogatories and the First set of Requst for Admissions of Truth of Facts and Genuineness of Docuents?

Since you just received Interrogatories/Admissions, in California you have 30 days + 5 days (mailing) for which to respond. I would take full use of the time allotted in California.

You're trial date is Mar 22, so responding to their request will put you pass your trial date and Plaintiff's won't be able to use this against you or try to get you to respond before Trial because of their screw up. Also, I believe that's an argument you can use against them in a meet & confer letter and state the ccp statute.

Just out of curiosity what did the Plaintiff state in their cmc statement as to when their Discoveries would be completed? That's another argument you can use.

Hopefully Calawyer or Seadragon or others will chime in on this but read that statute.

[Kobayoshi]

The Plaintiff did not appear for the CMC nor the MSC and was sanctioned by the court $1,000.00 for missing the MSC.

[helpme]

The Plaintiff did not appear for the CMC nor the MSC and was sanctioned by the court $1,000.00 for missing the MSC.

So they didn't file anything with the courts like their statement? If not, you still have the right to the 30 days + 5 days mailing which still would put you past your trial date. I wouldn't waste my time with answering. I would send a m&c letter stating the statute and you would have it to them within the allotted time the law allows you and see how they respond.

Plaintiff and their lawyers want to use your response against you. I still believe you should in a meet&confer letter state the 30 days. You can already see the judge in your case is not happy with the other side and so by showing the judge your meet&confer letter at trial there was no possible way you can comply before the trial since your 30 days would put you pass the trial date and state Plaintiff's lawyer is aware of the time to respond.

You can state something like: I received your request for [name of request] on this [date]. Based on the CCP statute [CCP statute] the Defendant has thirty (30) days + five (5) days for mailing to respond to Plaintiff's request.

For this reason, Defendant will comply with your request and will respond within the allotted time that the law allows.

Hope this helps.

Edited March 1, 2012 by helpme

[1stStep]

You may want to deny everything in your request for admissions and send to them a day or two before trial (personally, I think they've screwed themselves, so don't be surprised if they ask for a continuance)...

or, if you want to be a real sh*t, subpoena anyone signing that paperwork to appear...

[momof2]

Correct. And it varies by county in California so call first or look at your local rules to see how it is done in your county.

Just what I was looking for! I was trying to make sense of it, went to courts website and found the rules for the specific department, calawyer you're awesome!

[calawyer]

The Plaintiff did not appear for the CMC nor the MSC and was sanctioned by the court $1,000.00 for missing the MSC.

You might want to mention this when arguing your Motion in

Limine (if it gets that far). Fits in quite nicely with the theme.

[Kobayoshi]

My trial was Thursday, March 22nd. The judge ruled in my favor with a “Judgment for Defendant.” I further clarified with the judge that the ruling was a “Dismissal with Prejudice” This was a total victory for me! My victory was accomplished through the collaboration and efforts of the people who posted comments, direction and guidance through this “Discussion Forum.” I could not have attained this result without this forum and its contributors!

When I started this process, over 6 months ago I had been served with a law suit by Pride Acquisitions for a total amount with interest, penalties and costs for more than $50,000! (I was actually served in June of 2011.) I thought I was dead meat so I did not even respond to the complaint. I finally decided to do an information search on the internet and I discovered this forum. I posted my case and so began a journey into how to fight my law suit. Through this forum and postings from its members I discovered that all was not lost and I was not dead meat! I began following the directions made by forum members and things started moving in a favorable direction for me. First and foremost was my filing of a “General Denial.” This served as a huge “Stop Sign” to the creditor as it gave notice that I was not going to roll over and die and let them obtain an easy default and judgment against me. Forum members then began giving me instructions of what to do next which further served notice to the creditor that I was not going to be an easy $50,000.00. I continued on with a series of instructions, all from this forum that required the debtor to take actions necessary to legally pursue their claim. The debtor did not take any of the actions and failed to even show up at most of the court appearances. The judge actually sanctioned (fined) the attorney for the creditor $1,000.00 for one of the missed appearances, a mandatory settlement conference. In the end the judge could see that me, an unrepresented party made a solid effort and did the best job possible to defend against this law suit and the plaintiff and its attorneys did practically nothing except waist the court’s time and cause me to miss a lot of time at work, time with my family and stress. (By the way, law suits are rated among the top most stressful things that shorten a person’s life.) Along with the court’s ruling the judge looked me straight in the eyes and told me to ask for costs. I am not sure how much to ask for my new grey hair or the reduction of time with my family and friends but….. My friends here at the Credit Info Center will probably give me some great ideas! In closing, if you have been served a law suit and you feel like you have no defense, think again. Creditors who file these law suits make the calculated guess (bet) that you will not respond to their law suit and that they will collect a judgment against you for the full amount of their claim and then spend their time and money chasing you around for years trying to attach your bank accounts and wages. Don’t let them do this! You can fight your law suit and probably win or minimize the amount. Just “Post” your problem on this forum and work with the wonderful people who make this site the success it is! Special thanks goes to “calawyer” who deserves most all of the credit for my victory in this matter. Thank you calawyer, I won because of your attention and work with me!

[BV80]

CONGRATULATIONS!!!