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Advise on BOP Response from Cap 1 Lawyer


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Hi---

I posted earlier under one of my threads as a follow up. But didn't receive any responses. History on my lawsuit: We are being sued by LRLO for Cap 1 credit card for over $7000 ($5200 which is the original amount, remaining are interest and atty fees). We have went through the first stages of the lawsuit: Being served, filing an answer, attorney offering a counteroffer settlement, we denied the counteroffer and submitted our own offer and then we sent a BOP. I sent a BOP. I changed goods sold and delivered to breach of contract. I received a response today stating:

BILL OF PARTICULARS

Regarding the Bill of Particulars you have requested, pursuant to Ca Civ. Proc 454: A demand for bill of particulars may be served on the plaintiff only in an action on "an account." As stated in the Code: "It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party after a demand thereof in writing, a copy of the account or precluded from giving evidence thereof..." A bill of particulars is not appropriate in an action on an account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: i.e., there is nothing left to itemize. [Ahlbin v. Cresent Commercial Corp. (1950) 100 Cal.App.2d 646, 648, 224 P.2d 131, 133 --plaintiff may ignore defendant's demand]

Plaintiff's complaint alleges breach of contract and account stated as causes of action. As such it is plaintiff's position Bill of Particulars is inapplicable to plaintiff's cause of action.

Okay, first thing is that the complaint stated both Breach of Contract and Causes of Action. Which is why I sent the BOP under Breach of Contract, so I am not understanding why that is not being acknowledged in their response.

Second, am I reading it write that they ignore my (defendant's demand)? According to our court system (California), I can request discovery to the plaintiff in which the plaintiff has 10 days to respond.

In addition, before I received the BOP response, I was sent Plaintiff's Request for Special Interrogatories, Production of Document and Request For Admissions. I did research and pretty much know how to answer to the request. However, I am not sure how to proceed with the BOP response. Any input would be much appreciated.

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There is another current thread which I can't seem to locate at the moment concerning just this subject. calawyer even chimed in with some very good ideas on how to handle this situation.

EDIT: Doh, it was right there in front of me:

http://www.creditinfocenter.com/forums/there-lawyer-house/311860-why-advised-send-meet-confer-bop.html

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Griffin24, do you mind sending me a copy of your responses to Cap One's discovery request? I'm helping a friend who is in the same position as you.

Mark Walsh from LRLO sent discovery request to him also and I'm trying to help him with the responses. You can email it to me at johnbing75 @ yahoo.com.

Also, I do not work for any collection agencies. I'm just trying to help my friend out. Thank you for your help.

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