I'm Being Sued by GCFS Inc - Please Help!

[Rivertime]

Hello all and a big THANK YOU for this site and all your various contributions, it is very much appreciated.

While searching, I found a thread started by Shelbee who also was being sued by gcfs and my docs are almost exactly the same as listed in that thread so most of my immediate questions are answered there. I am at the same stage as Shelbee and am going to return my answers in the next few days, again thank you for those responses.

This debt was purchased by gcfs from another JDB gacc. The president of gacc supplied an "Affidavit of Correctness" to gcfs stating they purchased the debt from Chase Bank and that Affiant has "knowledge" of the account data that was transferred to gacc, etc. etc. (I will list the entire Affidavit if you need it, it's the same as Shelbee's. Question is this:

1. In the other thread, a response was given saying that the Affidavit might be good as toilet paper, that being the case, what would be a good approach to discredit it?

Also, a few more questions:

2. I already have a case management conference scheduled but I have not yet sent my discovery demands, am I still okay? What are the time-line restrictions, if any, in California?

3. I have read that in some states a limit is placed on the number of documents that can be requested in Discovery and/or the numbers of Admissions. If so, what are those limits? I have searched and spent time reading California's CCP's and have not found the answer.

4. I now learn that I was served improperly, server lied on their proof of service stating they left it with a competent member of the household when in fact they attached it to the door and my wife noticed it when she came home. He claimed on a "Declaration of Reasonable Diligence" per Jane Doe, who refused to give her name, was a co-resident. Is this a big deal? Does it matter now that the case is proceeding?

State I'm in - California

Amount $7,000 ish

Thanks again, y'all on this site are awesome!

rt

Edited January 11, 2012 by Rivertime

[1stStep]

Ok..

1. There's a couple ways to go after the affidavit...the easiest is to get a hold of the affiant's work history and if they never worked for the OC, file a motion to preclude it.

2. Get your discovery out ASAP. You want to be able to note on your CMS that you've sent discovery and are waiting for a response.

3. Since it sounds like Limited Civil, you will be limited to 35. I don't recall the exact code off the top of my head...

4. As for the process server, I'd sue them for fraud. It's too late in the game to file a motion to quash service. Be sure to get an affidavit from your wife describing how she found the summons. The process server has a $2k bond to go after (send them a copy of the suit) - and the surety company will probably settle with you.

[Rivertime]

Thank you 1stStep, you help is very much appreciated. Thank you for answering my questions on both threads

I see you're in AZ, are the rules the same in CA for the number of Docs and Admissions I can request?

By the way, it is a limited civil case.

Thanks again,

rt

[1stStep]

I used to live in Calif - technically fled there...

As far as rules, there are some similarities and many differences...

[VLDCA]

"Affidavit of Correctness" I've never heard of this. Are you sure its not an "Affidavit of Wrongness"? LOL I just had to go there. Do you still have it or already used it for toilet paper!!!! LOL

So you have NO BOS just a Affidavit of Correctness from the 1st JDB PRESIDENT (that's a joke right?) given to the 2nd JDB & the 1st JDB claim they bought it from Chase & apparently they lost that BOS & now they think this affidavit will work. ::idea2::NOT!

First of all the Affidavit is hearsay & shouldn't be admitted into evidence.

Was the affidavit signed out of state? Did it come w/ a declaration (CCP 98), if not you can use the Elkins v Superior Court, 41 Cal. 4th 1337, 1355 (2007).

for Caselaw.

Hopefully someone from CA will help you w/ a Motion. I know you were looking for some answers on that. I'm useless there.

[Rivertime]

I used to live in Calif - technically fled there...

As far as rules, there are some similarities and many differences...

So you fled aye, you're smart, got out while you still could... LOL!

Thanks again for your help, I going to be posting a request for some help in writing a motion to preclude the affidavit in a little bit and can certainly use more help.

rt

[Seadragon]

Hello all and a big THANK YOU for this site and all your various contributions, it is very much appreciated.

While searching, I found a thread started by Shelbee who also was being sued by gcfs and my docs are almost exactly the same as listed in that thread so most of my immediate questions are answered there. I am at the same stage as Shelbee and am going to return my answers in the next few days, again thank you for those responses.

This debt was purchased by gcfs from another JDB gacc. The president of gacc supplied an "Affidavit of Correctness" to gcfs stating they purchased the debt from Chase Bank and that Affiant has "knowledge" of the account data that was transferred to gacc, etc. etc. (I will list the entire Affidavit if you need it, it's the same as Shelbee's. Question is this:

1. In the other thread, a response was given saying that the Affidavit might be good as toilet paper, that being the case, what would be a good approach to discredit it?

Also, a few more questions:

2. I already have a case management conference scheduled but I have not yet sent my discovery demands, am I still okay? What are the time-line restrictions, if any, in California?

3. I have read that in some states a limit is placed on the number of documents that can be requested in Discovery and/or the numbers of Admissions. If so, what are those limits? I have searched and spent time reading California's CCP's and have not found the answer.

4. I now learn that I was served improperly, server lied on their proof of service stating they left it with a competent member of the household when in fact they attached it to the door and my wife noticed it when she came home. He claimed on a "Declaration of Reasonable Diligence" per Jane Doe, who refused to give her name, was a co-resident. Is this a big deal? Does it matter now that the case is proceeding?

State I'm in - California

Amount $7,000 ish

Thanks again, y'all on this site are awesome!

rt

First would be to prepare the CMC statement.

Second regarding the "affidavit" the court would rule that it "is their document" so you would only draw attention to it early enough for them to change it substitute it for another and such.

Third getting a couple form iterrogatories concerning the case. with a couple document requests., or a Bill of Particulars.

Fourth it is best to include a little statement to address the manner in which you are served, maybe you can complain to the California Bureau of Consumer Affairs against the process server for misrepresentation in the Declaration of Service.

Fifth you must start to use discovery to find out who is going to authenticate those documents and you may file a subpoena for the affiant of the 1 st jdb. Before that check to see who is the actual vice president of the first jdb

Sixth start researching caselaw in cali for standing, evidence foundation, out of state affidavits. prepare for you being questioned at trial(don't freak out).

And lastly realize you have to make sure you devote time to doing all this and foregoing other fun stuff. If you believe that you are going to give them a knockout blow before going to trial, Most judges won't allow that. So check your judges rulings to see which way you are going to go.

[Rivertime]

Thank you Seadragon for both your input and recommendations.

Regarding the Affidavit, I have checked and affiant is in fact the president of the JDB that sold it to gcfs the JDB who's suing me. I have started a thread, http://www.creditinfocenter.com/forums/there-lawyer-house/311538-need-help-filing-motion-preclude.html , about the Affidavit and asking for help in putting together a "Motion to Preclude" which had been recommended as a way to attack the JDB's standing to sue.

Are you recommending I wait on pursuing this as to not give them a whole bunch of time to fix it???

I have already sent a BOP and am planning on sending some discovery requests next week. I'm sure I can find some really good examples on this site.

I have been learning how to research case law and reading a lot. You're not kidding, there's a whole lot of other things I'd rather be doing than research... LOL, but people like you and others on here make it almost fun to strategize an approach to beat dem JDB's...

Please check out the other thread and comment, and also please comment on the timing issue.

Thank you again for all you do,

rt

Edited January 15, 2012 by Rivertime

[1stStep]

Have you gotten a response to your BOP?

I'd wait to see what they come up with so you can hone onto what to ask for from them in discovery...

***********

As far as fleeing California, the high cost of living drove me out...

[legaleagle]

TWO jdbs signing affidavits verifying the former crook's lack of a case? Coltfan will be spinning around in his chair so fast the bearings will burn out when he hears this one. I'd pay good money to see him in court against these dudes. Guaranteed they won't know about the BOP caselaw, and I ain't gonna tell 'em! You don't need any motions at this point, these guys will hang themselves. They'll pay for the rope, too. Watch the discovery. Just production of documents. Imagine two JDBs having to sue each other beacuse they got beat by a pro se. Priceless.

[Rivertime]

Thanks so much for your replies.

Great, I won't pursue a Motion to Preclude as of yet. I'll wait and see what their response to the BOP's and list them on here when I get them.

I gotta tell you, you guys (non-gender) and all your enthusiasm really gives hope to those of us who haven't navigated these waters before. I sure hope you realize just how much you all are APPRECIATED!!!

Thanks,

rt

[Rivertime]

***********

As far as fleeing California, the high cost of living drove me out...

What do you think got me into this mess...

AZ is nice, I have friends that live in Chandler and we like to go to Parker and play in the water from time to time.

rt

[VLDCA]

TWO jdbs signing affidavits verifying the former crook's lack of a case? Coltfan will be spinning around in his chair so fast the bearings will burn out when he hears this one. I'd pay good money to see him in court against these dudes. Guaranteed they won't know about the BOP caselaw, and I ain't gonna tell 'em! You don't need any motions at this point, these guys will hang themselves. They'll pay for the rope, too. Watch the discovery. Just production of documents. Imagine two JDBs having to sue each other beacuse they got beat by a pro se. Priceless.

LOL! I totally agree! My bogus BOS affidavit was thrown out during trial. The judge found it lacked foundation & I yelled hearsay & backed up w/ the caselaw above. Even when they brought a Witness (custodian of records) saying she had knowledge of this affidavit. Sure its now their documents, yet its hearsay. You can't cross examine their document.

I can't wait to see what they come up w/ next either.

[legaleagle]

Check my thread from time to time, I just started it today. I'm posting case law etc that I find along the way. It's just info, no replies needed. I did post a case today I saw about affidavits. Texas as I recall, but good case law.

[Rivertime]

Check my thread from time to time, I just started it today. I'm posting case law etc that I find along the way. It's just info, no replies needed. I did post a case today I saw about affidavits. Texas as I recall, but good case law.

That thread of yours is going to be a very valuable asset for a lot of us on here. I know I speak for many when I say THANK YOU!!!!!

[legaleagle]

Look below that to the next one I posted, it is the Google Scholar link I used to find this. I fish every day for stuff to use against my favorite lender, and often see good stuff others can use. Now I'll post it for you to use. Also, I recommend that you follow Coltfan1972's posts. He really has strategy down pat.

[Rivertime]

Well, on a few recommendations, I have not yet sent my ROG’s, Request for Docs, and Request for Admissions. I was waiting for their response to the BoP I sent them. I have received their response and have listed it below. I guess my next step is to send them the other Discovery requests and see what they come up with. I would very much appreciate the strategic minds on here to examine their response and pull it apart. I really want to fight this and I very much appreciate all the great help.

With their response they included 13 statement copies (by the way, the statement copies say in bold at the bottom “This Statement is a Facsmile – Not an Original”)

The Credit Card agreement they sent me is not the same agreement they sent me with their Discovery request. Still can’t read it, too degraded, but it is a different agreement.

They also included what looks like an Excel spread sheet with most all the fields covered up and a single line showing personal info of mine and alleged account information claiming to be from the BIG BANK, OC.

Here's their response to my BoP:

RESPONSE TO DEMAND FOR BILL OF PARTICULARS C.C.P. § 454

Pursuant to Code of Civil Procedure, Section 454, Plaintiff JDB NO 2, INC. (hereinafter referred to as “Responding Party” or “Plaintiff”) responds to Defendant, Harry Callahan, demand for Bill of Particulars as follows:

OBJECTION: A Bill of Particulars is not appropriate in an action alleging an “account stated” since the items upon which an account is based are deemed merged and there is nothing left to itemize. (See Ahlbin v. Cresecent Commercial Corp (1950) 100 Cal.App.2d 646, 648). Accordingly, Plaintiff is not required to respond to Defendant’s demand. (See Distenfano v. Hall (1963) 218 Cal.App. 2d 657, 677).

OBJECTION: A Bill of Particulars is not appropriate tool in order to determine the chain of title, and/or the contract basis of the account. Code of Civil Procedure § 454 states that a “copy of the account” and “items of an account” are what are required under a Bill of Particulars. The chain of title is not an element which can be demanded via a Bill of Particulars. The contract is not an element which can be demanded via a Bill of Particulars. The appropriate method for obtaining a copy of the contract and chain of title is a request for production of documents under Code of Civil Procedure § 2031.010 et seq.

OBJECTION: The Plaintiff’s attorney is not a party to this case, and has no interest or ownership of the underlying account. Consequently, Plaintiff’s attorney’s legal status regarding this account other than the representation of Plaintiff is completely irrelevant and not covered under Code of Civil Procedure § 454.

HOWEVER, in the interest of mutual disclosure and dialog, the Plaintiff will product documents which are not in response to such a demand, but comprise the related causes of action.

Accordingly, Responding Party herewith submits the following documents:

1. Consumer Credit Card Customer Agreement & Disclosure Statement Visa® or Mastercard®, is attached hereto and incorporated herein as Exhibit A.

2. Account statements of the BIG BANK CREDIT CARD account ending in 1234, are attached hereto and incorporated herein as Exhibit B.

3. Affidavit and Bill of Sale, signed by ELMER FUDD and MIKE DUMBARSS, attesting to BIG BANK sale and transfer of the ACCOUNT to JDB NO 1, LLC (“NO 1”), is attached hereto as Exhibit C.

4. Affidavit and Bill of Sale, signed by MIKE DUMBARSS, attesting to NO 1’S sale and transfer of the ACCOUNT to Plaintiff is attached hereto as Exhibit D.

5. Account information transferred to JDB NO 2, INC. regarding the account referred to in Exhibit C and Exhibit D, is attached hereto as Exhibit E.

Dated: Month, XX, 2012

BILL OF SALE Big Bank Logo Here

Closing Date: 05/20/2011

Big Bank USA (“Seller”), for value received and pursuant to the terms and conditions of Credit Card Account Purchase Agreement dated 11/12/2010 between BIG BANK USA, and JDB NO 1, LLC (“Purchaser”), its successors and assigns (“Credit Card Account Purchase Agreement”), hereby assigns effective as of the File Creation Date of 05/14/2011 all rights, title and interest of Seller in and to those certain receivables, judgments or evidences of debt described in the Final Data File, entitled (Account’s Primary File Name) attached hereto and made part hereof for all purposes.

Number of Accounts X,XXX

Total Unpaid Balances  (Redacted by Plaintiff)

Premium  (Redacted by Plaintiff)

Due Seller  (Redacted by Plaintiff)

Amounts due to Seller by Purchaser in hereunder shall be paid U.S. Dollars by a wire transfer to be received by Seller on (the “Closing Date) 05/20/2011 by 2:00 p.m. Seller’s time, as follows:

BIG BANK USA

ABA  (Redacted by Plaintiff)

Beneficiary Name: BIG BANK USA

Beneficiary Account:  (Redacted by Plaintiff)

This Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement. No other representation of or warranty of title or enforceability is expressed or implied.

BIG BANK USA JDB NO 1, LLC

By: Signed By: Signed

Elmer Fudd

Date: XX/XX/XXXX Date: XX/XX/XXXX

Title: Team Leader Title: President

JDB NO 1, LLC

1234 E Gonna get Beat Dr., Suit 400

SOMEWHERE, TEXAS 22222

ASSIGNMENT AND BILL OF SALE

JDB NO 1, LLC (“Seller”) has entered into a Loan Sale Agreement, dated June 17, 2011 (“Agreement”) for the sale of Accounts described in Schedule A thereof JDB NO 1, INC. (“Buyer”), upon the terms and conditions set forth in that agreement.

NOW THEREFORE, for good and valuable consideration, Seller hereby sells, assigns and transfers to Buyer all of Seller’s rights, title and interest in each and every one of the Accounts described in the Agreement, provided however such a transfer is made without any representations, warranties or recourse, except as provided in the Agreement.

Buyer and Seller agree that the Purchase Price shall be stated in Schedule A, attached to the Agreement.

IN WITNESS WHEREOF, Seller has signed and delivered this instrument on the 17th Day of June, 2011.

JDB NO 1, LLC

By: signed

MIKE DUMBARSS President/CEO

Once again, thank you to all. I would really appreciate you guys (gender neutral) pick this thing apart... Thanks again,

rt

[Rivertime]

Bump!

Anyone??? Anyone???

Should I put this request in a thread by itself?????

Any help would be much appreciated...

rt

[1stStep]

Was exhibit A attached? If not, and it does not specifically mention your account, you can attack their standing to sue.

As far as their response, was account stated the only allegation? If not, then they are blowing smoke up you *ss...

[Rivertime]

Thank you 1stStep for your response. I really appreciate the feedback.

Yes, Attachment A was included; however, it was just a generic credit card agreement and a different one at that, then the one they sent me with their discovery requests. And, by the way, they are both virtually unreadable.

"Account Stated" was listed in the second complaint Cause of Action - Common Counts. The first complaint is "Breach of Contract."

The thing I don't quite get is the statement in their first objection that says "since the items upon which an account is based are deemed merged and there is nothing left to itemize." Since it is "Deemed Merged" does that mean they do not have to comply with the BoP as it relates to the breach of contract? What does deemed merged actually mean?

Thanks for the help and input, I really appreciate it.

[legaleagle]

Account stated relies upon the last statement they sent you. They will say that you retained it for an unreasonable amount of time without objection, therefore you agreed to the balance. You did call them several times to dispute the balance, didn't you? And didn't they hang up on you or transfer you or let the calls time out? Seem to remember you told us this. Happens a lot with CC companies. This is JDB number three, they have little chance of winning. According to what I see in BOPs, they do have to itemize. They used this count, that allows you to ask for this. They say they don't have to give it to you because of count two. No good. You used it, you live with it. The lack of the BOP will kill count two, that's what they know and do not like. They'll never be able to prove this the way they are going.

[pata]

LOL! I totally agree! My bogus BOS affidavit was thrown out during trial. The judge found it lacked foundation & I yelled hearsay & backed up w/ the caselaw above. Even when they brought a Witness (custodian of records) saying she had knowledge of this affidavit. Sure its now their documents, yet its hearsay. You can't cross examine their document.

I can't wait to see what they come up w/ next either.

HAVE THE SAME SITUATION NEED HELP, DID NOT HAVE EXPERIENCE ON HOW TO POST IN THIS WEB, BUT  MY TRIAL IN ON APRIL AND STILL NEED TO SEND CCP96, MOTION TO PROCLUDE MOTION INLIME ECT

[Rivertime]

HAVE THE SAME SITUATION NEED HELP, DID NOT HAVE EXPERIENCE ON HOW TO POST IN THIS WEB, BUT  MY TRIAL IN ON APRIL AND STILL NEED TO SEND CCP96, MOTION TO PROCLUDE MOTION INLIME ECT

 

Hi Pata,

 

This thread, post number 8, we're all here to help.

 

Good luck,

 

rt