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JDB stated that they can IGNORE MY BoP...please help!

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In general JDBs have absolutely no evidence; no assignment of contract and nothing to prove that they own the contract.

I recently had my case dismissed. I am a bit of a dufus but did the BOP and Discovery. They produced a piece of paper showing that they had purchased 35,800 accounts (nothing with my name), a copy of a contract (without my name and unsigned), and an old statement of mine. That was their total "evidence".

Before trial they sent me a Notice of Trial with an affidavit in lieu of live appearance of their witness (some low level employee of theirs). I immediately filed a Notice to Appear. When I walked into court their lawyer appeared with only a piece of paper, probably with her cases of the day. She asked me to settle. I said, "no .. you have no standing". She said, "I'm asking for dismissal without prejudice".

I would go with Motion to Compel after Discovery. I didn't do that because as I said I don't follow direction well :) They will most likely fold at that point.

From what I've seen, the only reason these JDBs win any of their cases is because the defendant fails to fight. The plaintiff in my case had told me by phone at one point that they win 98% of their cases. Of course they do when the defendant is nowhere to be seen!

Like you, I received loads of great advice and help on these boards. In time I know I will be reading your post, 'I WON' !!!

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I don't know why I didn't do this in the first place, but I looked up the ruling in the case of [Ahlbin v. Crescent Commercial Corp. 100 Cal. App. 2d 646] from the JDB's statement they sent to me and it says:

Three causes of action are set up in the amended complaint, in the first of which it is alleged that defendants became indebted to plaintiffs upon a book account in the sum of $2,250 for money had and received, which sum defendants agreed in writing to pay to plaintiffs; that the demand for payment [100 Cal. App. 2d 647] was refused and the whole amount is owing and unpaid. In the second cause of action it is alleged that there was an account stated between the parties whereby it was determined that defendants were indebted to plaintiffs in the sum of $1,450, and in the third cause of action an account stated was alleged for the sum of $931.24.

Defendant answered the amended complaint and demanded a bill of particulars. Plaintiffs failed to furnish such a bill or to furnish a copy of the account sued upon........

In this connection plaintiffs contend that it was not necessary that they comply with the demand for a bill of particulars insofar as the second and third causes of action were concerned.

From this, I'm assuming that the first cause of action for "money had and received" would still need to be complied with for the BoP. I'm hoping that this also pertains to a Breach of Contract cause of action according to CA Civil Code Section 3301.

I just hate to let them get away with this if they still have to comply with my BoP request for breach of contract. Imagine how often they would be mailing these letters out!

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Personally, if you're faced with a case where BOP isn't applicable, I'd fire off a document demand...Box them in with a document demand for "All DOCUMENTS reflecting any TRANSACTIONS on the account at issue in this litigation."

Then define TRANSACTIONS as all charges, credits, payments, etc (depending on what kind of account this is but you get the idea).

You might have to move to compel, but in the end, you will box them in for ALL causes of action.

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From what I've seen, the only reason these JDBs win any of their cases is because the defendant fails to fight. The plaintiff in my case had told me by phone at one point that they win 98% of their cases. Of course they do when the defendant is nowhere to be seen!

Does that make us the "two percenters"? ;)

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From this, I'm assuming that the first cause of action for "money had and received" would still need to be complied with for the BoP. I'm hoping that this also pertains to a Breach of Contract cause of action according to CA Civil Code Section 3301.

True enough, if the rules allow. However, you're overlooking one thing...if they win on account stated, they can still get their judgment. They can lose on the other two counts and still have you on the ropes. That's why they generally throw in all the causes of action that apply.

They win 98% of the time? What's their batting average against people who fight?

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Hello everyone,

 

I finally got around to sending off the meet and confer letter about insufficient BOP to the JDB attorneys.  I was really confused after reading this thread and many others about whether I should've sent a BOP in the first place regarding Breach of Contract/Account stated causes of action.

 

Some people said that I should send a meet and confer and others said that I couldn't because the JDB was right to deny my BOP for account stated.

Well I just froze and couldn't even do anything!  I've had some recent health issues and so I waited it out trying to recover and recently received a letter to appear in court for a case management conference.  That lit the fire in me and I decided that I needed to keep up the fight. 

 

I received a response to the BOP from the JDB after all!  They have sent me all of the credit card statements from zero balance to the most recent one which shows the total amount due.  (I did not have the account for that long.)  Now I am not sure what to do.  Case management conference is in about a month and I will need to file something with the court first.

 

My question is...is this still insufficient?  Don't they still have to provide a bill of sale and an affadavit from the OC?  They haven't proved standing, correct?  Do I put on the CMC form that I file with the court that I plan on filing a Motion to Compel?

 

What is the next step?  Any help would be greatly appreciated as always!!!!  I am super thankful for any advice on this!!!

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Hello everyone,

 

I finally got around to sending off the meet and confer letter about insufficient BOP to the JDB attorneys.  I was really confused after reading this thread and many others about whether I should've sent a BOP in the first place regarding Breach of Contract/Account stated causes of action.

 

Some people said that I should send a meet and confer and others said that I couldn't because the JDB was right to deny my BOP for account stated.

Well I just froze and couldn't even do anything!  I've had some recent health issues and so I waited it out trying to recover and recently received a letter to appear in court for a case management conference.  That lit the fire in me and I decided that I needed to keep up the fight. 

The main thing is that you are fighting them. Whether or not people do everything correct on the BOP is not that big of a deal because the jdb is forced to work on the case by objecting as well.

I received a response to the BOP from the JDB after all!  They have sent me all of the credit card statements from zero balance to the most recent one which shows the total amount due.  (I did not have the account for that long.)  Now I am not sure what to do.  Case management conference is in about a month and I will need to file something with the court first.

The bad part is they show zero balance to actual amount due. You need to find a way to strike the evidence (when the time comes). Maybe they are not originals or duplicates, but re created by the debt collector? Many people disagree with me here but you fight anyway you can, check all documents and filter them thru the rules of evidence. Hearsay, business records exception, authentication rules, best evidence rules, find some reason to strike evidence. Anything you do that is not 100% correct or people disagree on will still force them to work on the case and they may find it is not worth fighting you and dismiss. If you were drowning in a pool you would try everything you could think of before just "submitting" and going to sleep.

 

My question is...is this still insufficient?  Don't they still have to provide a bill of sale and an affadavit from the OC?  They haven't proved standing, correct?  Do I put on the CMC form that I file with the court that I plan on filing a Motion to Compel?

 

What is the next step?  Any help would be greatly appreciated as always!!!!  I am super thankful for any advice on this!!!

They don't have to do anything if you don't object to it and force them to do things. Send discovery. Request for production of documents and interrogatories. Demand the documents that prove standing. Keep pressure on them.

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