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BoP question in California


Anza01
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Greetings, I have been reading and learning as much as I can and I finally have a question to ask.

I am in the middle of a debt collection case with a OC in California. I served the lawyer representing a BoP and within 10 days I received a copy of all statements from day one.

There was no authentication from the OC or affidavit attached. Just the signature of lawyer who said nothing more than the following,

"BANK hereby responds to MY NAME Demand for Bill of Particulars pursuant to CCP 454, by attaching the responsive documents "Attachment 1" hereto."

With no authentication from the OC or affidavit this BoP is hearsay, correct? Should I MTS?

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Unfortunatley as you stated you are being sued by the OC, and this means a BOP is very easy for them to provide. BOP for an account that is sold to a JDB/DC usually has a better chance of working.

The good news is you have all the statements produce now.

You are correct these will need to be authenticated via decleration/affidavit of someone from the OC. You will get this soon enough.

As long as you have filed an answer and now recieved what is required a full accounting of the account, based on the BOP, you may want to begin reading and studying the next steps which will come your way.

The first of which will be Discovery.

Depending on the amount of the debt and which OC and when you defaulted (made your last payment) you may want to investigate arbitration based on the cardagreement......

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Unfortunatley as you stated you are being sued by the OC, and this means a BOP is very easy for them to provide. BOP for an account that is sold to a JDB/DC usually has a better chance of working.

The good news is you have all the statements produce now.

You are correct these will need to be authenticated via decleration/affidavit of someone from the OC. You will get this soon enough.

As long as you have filed an answer and now recieved what is required a full accounting of the account, based on the BOP, you may want to begin reading and studying the next steps which will come your way.

The first of which will be Discovery.

Depending on the amount of the debt and which OC and when you defaulted (made your last payment) you may want to investigate arbitration based on the cardagreement......

Thank you Skippy1960. I am sorry I did forgot to mention that I am in ARB with JAMS. OC is Cap1. We are in the discovery stage right now.

When you say I will get a declaration/affidavit soon, is that a given or will I have to motion to strike/limine to get them?

We have moved along so far I am doing all I can to keep up with the reading. This is why I find myself asking questions now. To be clear, I am not asking what to do but pointers on what to read would be great because I am down to a little over two months now before the hearing in San Diego.

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The good news is you have all the statements produce now.

Could you elaborate more on this? This is good news? From what I have read that now Cap1 can no longer ask for any amount higher than they are asking right now, correct? The statements match the amount they are seeking.

Which would bring me to another question on where to read up on, the OC will not be able to add any amount, including late fee's and interest now that they provided a BoP, correct? I hope I have that part right, Open/Account stated is still confusing me.

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Thank you Skippy1960. I am sorry I did forgot to mention that I am in ARB with JAMS. OC is Cap1. We are in the discovery stage right now.

When you say I will get a declaration/affidavit soon, is that a given or will I have to motion to strike/limine to get them?

We have moved along so far I am doing all I can to keep up with the reading. This is why I find myself asking questions now. To be clear, I am not asking what to do but pointers on what to read would be great because I am down to a little over two months now before the hearing in San Diego.

The account that supplied you with the answer to your BOP, is in Arb with JAMS????

Or are we talking about a different account? Doesn't make sense that you would use a BOP in arbitration.....

Best way to make sure you get the most from asking questions is not to mix to accounts into one thread.

So try to clear up where we are, the I am reading you have 2 different accounts. (1) with Cap 1 that it is arb with JAMS. The (2) account is still in court and you recieved response from your request for BOP, all the statements.

Once you clarify, I will try to answer....

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The account that supplied you with the answer to your BOP, is in Arb with JAMS????

Sorry for any confusion. The account in question is being arbitrated in JAMS. I had numerous violations on Cap1 and their CA.

I initiated with JAMS, Cap1 still filed a lawsuit which I had moved out of superior court with a MTC. We have already covered a lot of ground and a hearing is scheduled for April.

For the most part I have been able to research everything that I need to know and for me, this has been a fast moving process. We are already almost one year into their filing a lawsuit against me.

Counsel for the OC has violated numerous procedures within JAMS. Some have been frustratingly allowed, others have been stopped by the arbitrator. I would say the OC and I are at a stalemate, seeing who will blink first.

We did try to negotiate a settlement. I gave my best offer and counsel came back with a insulting offer which led to my cutting off talks. Counsel did try to bring it back up but I feared they were not serious and sure enough it didn't go anywhere.

I asked for a BoP along with my discovery package and this is where I am at right now. I believe my discovery will put them in a bind.

I am reading all I can on the BoP and affidavit's but I am not quite finding anything that relates to my situation.

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So first I would say good that you have moved them out of court. I assume that you understand that the arb concept/stratgey is built on the model of a cost benifit analysis, for the OC.

Namely, that the cost of the arbitration generally will cost dramaticly more than court, and that even if they win they can't be awarded the attorney's fees and JAMS hearing fees and the like. Based on I believe Rule 8 of the JAMS consumer rules. (speical rule for us in California)

As I don't know the amount of the debt, but Cap 1 doesn't usually let folks get real high debt limits, so assuming your debt is $5K or under, in most cases they tend to settle prior to the JAMS hearing. Aribrators are paid at +/- $500 per hour and the bill they will get for that hearing in April will between $5K and $10K, depending on how far the arbitrator may have to travel.

How long ago did you have your commencment call, and what was the outcome on the choice of law. Cap 1 says Virginia Law and that is 3 yrs SOL, versus 4 years in California. Any chance your default is greater than 3 years before they filed suit in court last year?

Also, who is the Attorney handling the arb? Same one that sued you or have they moved to a different counsel. What we have seen if Cap 1 is going to play hard ball they usually move to a different attorney, than the one that filed suit in court. (You can use initials so you don't have to type out the name or send me a Private Message with the attorney)

Another thought is don't know if you have been to Debtorsboard.com, there is a much more informed group as to arbitration. Might be a good place to take a peek.

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So first I would say good that you have moved them out of court. I assume that you understand that the arb concept/stratgey is built on the model of a cost benifit analysis, for the OC.

Namely, that the cost of the arbitration generally will cost dramaticly more than court, and that even if they win they can't be awarded the attorney's fees and JAMS hearing fees and the like. Based on I believe Rule 8 of the JAMS consumer rules. (speical rule for us in California)

As I don't know the amount of the debt, but Cap 1 doesn't usually let folks get real high debt limits, so assuming your debt is $5K or under, in most cases they tend to settle prior to the JAMS hearing. Aribrators are paid at +/- $500 per hour and the bill they will get for that hearing in April will between $5K and $10K, depending on how far the arbitrator may have to travel.

How long ago did you have your commencment call, and what was the outcome on the choice of law. Cap 1 says Virginia Law and that is 3 yrs SOL, versus 4 years in California. Any chance your default is greater than 3 years before they filed suit in court last year?

Also, who is the Attorney handling the arb? Same one that sued you or have they moved to a different counsel. What we have seen if Cap 1 is going to play hard ball they usually move to a different attorney, than the one that filed suit in court. (You can use initials so you don't have to type out the name or send me a Private Message with the attorney)

Another thought is don't know if you have been to Debtorsboard.com, there is a much more informed group as to arbitration. Might be a good place to take a peek.

Thanks Skippy, yes I have read a lot at Debtorboards and I know counsel for the OC reads it. She even made a snarky remark about it. I plan on giving the full story after this is all done!

Back to my original question, did the lawyer have to provide some type of affidavit or authentication when they delivered the BoP? Being the lawyer for the OC, is that enough?

I've been a thorn in her side since day one and I constantly attack everything and done so with just cause. I want to pounce on the lacking affidavit if I can. I just can't find anything. Any tips on what to read?

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I want to pounce on the lacking affidavit if I can. I just can't find anything. Any tips on what to read?

A party responding to a BOP is not required to authenticate documents with an affidavit. If the complaint is verified, the BOP response must also be verified. If the complaint is not verified, palintiff need only produce the requested documents. Any document will be authenticated (or fail to be authenticated) at trial.

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Back to my original question, did the lawyer have to provide some type of affidavit or authentication when they delivered the BoP? Being the lawyer for the OC, is that enough?

In the two instances that I have requested a BOP, the Plaintiff's attorney has filed a decleration along with the BOP, although the wording of the decleration was along the lines that they submitted X number of monthly statements.

These statements themselves would still be considered hersay, up and until, a witness i.e, affiant or declerant with personal knowledge of the records authenticates the statements.

You may want to review the following California Evidence Code-

Section 702 (a)

Section 1200

Section 1401 and 1402

Section 1523

These are comonly used statues to object to hersay evidence, that I am aware of.

Remember though you are in arbitration and the whole idea, is for a less formal setting and rules according to JAMS, not neccessarily, Civil Procedure. I would think the arbitrator will need to play pretty close to the cuff on evidence statues, or you should have a good argument if you lose to object if/when they try to turn any arb award into judgement.

Best of Luck

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Thank you calawyer and Skippy. The CA Evidence Code is exactly what I am looking for. More reading!

From what I can tell it would appear that I should at the very least object to the BoP that was provided because if I do nothing, I could be waiving any future objection.

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From what I can tell it would appear that I should at the very least object to the BoP that was provided because if I do nothing, I could be waiving any future objection.

You don't need to object to the BOP itself. You object when and if the plaintiff attempts to submit the documents into evidence. This could be in support of a motion (ie. a motion for summary judgment) or at trial.

Having said that, the OC should be able to authenticate these documents. A proper custodian of records can lay a foundation under the business records exception to the hearsay rule. Sometimes the OC sends a "litigation spe******t" who can't really testify to the mode of preparation, etc. But there is no reason why the OC could not have a proper witness testify.

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  • 1 month later...

Update: Thanks to everyone who has provided advice. The opposition really wanted to settle before the case hearing and I walked away with a very favorable settlement agreement.

Wish I could say more.

Short lived victory, I have a whole new issue I will bring up in a new thread shortly!

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