Virginia - late Bill of Particulars

[zotzer]

Hi there,

I am "new", but have been reading through this forum for a month or so. What a treasure!

Anyhoo, as a little background, I am in Virginia, and received a Warrant in Debt from Midland (Dominion Law Associates as their attorney). Went to court, requested a court date and Bill of Particulars.

That was due on 2/22 with my Grounds of Defense due on 3/14.

A few days after the original hearing, DLA sent a letter with a self-addressed stamped envelope requesting my Grounds of Defense. That's all well and good, but today is 2/24 and no BoP has been filed with the court, nor has it arrived here.

What on earth do I do now? How do I file a GoD without their BoP? They have sufficed in stumping me, so I am here to ask the experts.

Thanks, in advance, for your help!

[legaleagle]

I would advise then that the "defense" is not due until 3-14, and that you will provide them with a copy at that time. The court makes the rules, not these guys. If at that time they have not responded to the BOP, file a motion to compel along with an extension of time to answer.

[zotzer]

Thanks, Legal.

I've been stewing on this, as I am sure people tend to do.

The SOL is expired, and the affadavit is meaningless. I would probably rather submit my GoD with simply those two points: lack of claim and SOL.

Rather than ask for an extension, I think I'd rather just go to trial and request summary judgement or dismissal with predjudice (which one is preferable...I have no idea?).

The forms are very clear and have "MUST" in bold and caps when referencing submission dates. I don't think the court will look very kindly on the late BoP.

I wonder if, along with my GoD, I should include the motion to strike and motion to dismiss with predjudice, or just bring them with me to trial. ?

My concern is that they will probably file non-suit the night before trial, out of the pure enjoyment of continuing to harass me.

[zotzer]

oh, just to clarify....

When I seem concerned about submitting my GoD, I mean "to the court". Screw those MF lawyers....I will send them a copy only because I have to.

Just wanted to clear that up.

[zotzer]

So, thanks to this forum for the insistence on reading court rules and procedures, I found this gem:

"Rule 7B:2. Specific Rule for Pleadings in General District Courts.

The judge of any General District Court may require the plaintiff to file and serve a written bill of particulars and the defendant to file and serve a written grounds of defense within the periods of time specified in the order so requiring; the failure of either party to comply may be grounds for awarding summary judgment in favor of the adverse party. Upon trial, the judge may exclude evidence as to matters not described in any such pleading."

The court ordered the BoP, and it was not returned. I am thinking that, rather than waiting for a late BoP to turn up, I may file 3 things tomorrow:

- My GoD, which simply states two things: Failure to state a claim, and time barred due to SOL

- Motion to strike the affadavit

- Motion for summary judgement, based on the rule above.

I would rather get my motion in, before they file a notion for voluntary non-suit, leaving me open to continued harrassment.

Thoughts?

[legaleagle]

The BOP form has a place where the court says what date they must respond by. What is the date? If they did not respond, you can take action, although usual court procedure is to give all parties some time to get caught up on paperwork. Usually it is a couple of weeks. Check your rules.

[zotzer]

Date for filing of the BoP was 2/22.

Rules are posted above, and seem quite specific. I am going to sit on my motion to strike the affidavit, and simply file my GoD and Motion for Summary Judgment tomorrow at the court. (oh, and mail a copy to JDB)

[legaleagle]

Why do you say the SOL is expired?

[zotzer]

Hi Legal,

Well, they show what I think is a "last payment" (it is listed as l/pay) date that was nearly four years ago, and our SOL in VA is 3 years.

But, they have also submitted no evidence of anything...just the standard worthless affidavit, and a half-page printout of their own computer screen....some sort of "account summary" that has very little meaningful information on it.

Went to the courthouse to file my GoD and the Motion for Summary Judgement. The clerk asked "what is a summary judgement?" LOL She went and asked somebody something, and said she would just add it to my file. Then she said "oh, the Bill of Particulars was due on 2/22, and it's not here", to which I replied that that is precisely why I requested the summary judgement, and showed her the rule.

Guess we will see what happens from here. I have two of these going on, both from Midland, amounts almost identical, but listing two different OC's and accounts. Regarding the second one, I found the original CC in a drawer....still glued to the paper it was mailed on, with a big sticker on it that says it must be activated before being used. Can't wait to show *that* to a judge, if it comes down to it. Friggin charlatans.

[legaleagle]

They often mix up account numbers, they did that with me. They sent RFAs and ROGs for a different account than the one in the complaint. I had a lot of fun answering those. The SOL is important, but the VA statute may not apply. What state is the OC located in? Who is the OC? If their SOL is longer, you'll have to research substantive v. procedural law for your state. If one SOL nixes this, that's the one you argue for. VA is 3 years, some credit card companies specify theirs or yours. Cap 1 does this.

[zotzer]

One is First Bank of Delaware, and one is HSBC.

SOL probably won't come into play anyway. They never answered the BoP, and the rules are pretty specific that the judge can opt for Summary Judgment, or at the very least, exclude them as evidence. Either way, they will have nothing upon which to state a claim (the first line of my GoD).

[legaleagle]

Right off their site:

First Bank of Delaware is a full-service, state-chartered bank dedicated to serving the needs of individuals, businesses, and families throughout the state of Delaware. We offer the competitively priced products and services you need to reach your goals, including:

This bank is subject to the state banking laws. This is not a national bank. Here is the interest rate statute:

CHAPTER 23. INTEREST

Maybe you can make something out of this.

HSBC is Nevada based, 4 yr SOL for credit cards or 6 years for a written contract.

Since DE law applies to DE banks, look into it for some extra ammo. The banking commission (if you have one) applies, there may be no private right of action in case you want to file a counter claim. Check it out. Lots of work for you to do!

[Chemburleigh]

This is the BoP I received from Dominion Law.

COMES NOW, the Plantiff, Midland Funding LLC, by counsel, and for its Bill of Particulars states the following:

1. Defendant is indebted to Plantiff by reason of nonpayment of open-end credit card account, originally a Chase Bank USA, N.A. Mastercard account, account number XXXXXX.

2. The Chase Bank USA, N.A. Mastercard account was assigned to Midland Funding LLC.

3. The current balance due on the account is $XXXXX together with interest and cost.

4. A copy of the Statement of Account is attached hereto as "Exhibit A."

5. Copies of the monthly statements are collectively attached hereto as "Exhibit B."

6. A copy of the Bill of Sale is attached hereto as "Exhibit C."

Exhibit A was a statement made up by Midland.

Exhibit B was about 18 month of statement from orginal creditor

Exhibit C bill of sale with Chase logo, no account numbers or my name, states Exhibit 1 attached(nothing is attached)

[legaleagle]

You should stick to one thread. We cannot jump back and forth.

[zotzer]

Check it out. Lots of work for you to do!

Well, they are helping me immensly by failing to file the BoP. The second one is due on the 7th. If that is a no-show like the first one, I am thinking it will be easy, based on the rules of the court. I guess the judge is free to disregard the rules, but then I will just appeal.

They are not huge sums of $ (under $1k each), but it is the principle of this nonsense that I will continue to fight. Otherwise, maybe we should all just start coming up with random sums of money that we want to sue people for, and make pretty papers on our computers that make it look legit..... We'll all be rich. LOL

[brody445]

I'm new to the whole situation having just recently been served and been to the return date where I requested a BoP. I've come across the info below during my research - I'm not sure if it will be a help to you or not. The first part is more for general "trivia" knowledge

If you take a look at the Wikipedia page related to the "Bill of Particulars" it is interesting that the author notes that:

"The bill of particulars was abolished in nearly all U.S. court systems in the 1940s and 1950s due to the widespread recognition that much of the information requested could be obtained more efficiently through the discovery process. Today, only a minority of U.S. states, like New York, Illinois and Virginia, use the bill of particulars. The closest modern equivalent, though rarely used, is the motion for a more definite statement."

Frankly, I'm not sure which party is favored in VA due to the antiquated BoP process. Discovery (which looks like a great tool as I review threads in other states without BoP) is very limited in VA as (it appears) is the ability to subpoena /depose witnesses. This seems limiting to me (the defendant), but hopefully locks the JDB lawyer into rolling with what they've got and if they didn't think of it, there is no discovery request from me reminding them of what they might have forgotten they needed to prove their case...

Anyhow, I found a useful PDF on VA rule 3:18[d] "What does it mean" via google. I would post the link here - but I can't until my post count is above 20 It was an article submitted to the William and Mary Review of Virginia Law and written by T. H. Spainhour. If you google it and come across the link and could post it here - it would probably be helpful to other Virginians working through these issues - it has a lot of information related to BoPs within the article.

I’m still struggling to come up with my Grounds of Defense in response. I know it should contain number paragraphs “answering” each of the claims of the plaintiff – but I’m not sure if/what affirmative defenses must be raised in VA. If you are angling that the JDB has not made their case based on the evidence (or lack thereof) that they submit – is an affirmative defense still required?

I'm also unsure as to the "catch all" that they tack on - the last numbered statement on my BoP is that "the plaintiff reserves the right to supplement their Bill of Particulars." Obviously, if possible, I'd like to block that right - I wonder if I can do so by objecting to it in my GoD? I plan on starting a separate thread on the issue. I've been able to find very little information online related to Virginia specifically - it is a little unnerving.

[zotzer]

Frankly, I'm not sure which party is favored in VA due to the antiquated BoP process. Discovery (which looks like a great tool as I review threads in other states without BoP) is very limited in VA as (it appears) is the ability to subpoena /depose witnesses. This seems limiting to me (the defendant), but hopefully locks the JDB lawyer into rolling with what they've got and if they didn't think of it, there is no discovery request from me reminding them of what they might have forgotten they needed to prove their case....

Frankly, I think it helps eliminate the noise and enables a defendant to cut to the chase. Show proper title/assignment, and not simply a hearsay affadavit and list of computer printouts if you want to state a proper claim to my money.

[zotzer]

Got a letter for case #1 (with the late Bill of Particulars) that they are asking for non-suit. I guess that is "sort of" a win, but I was hoping to get a judge to toss the thing out and make them go away.

They filed the BoP in time for case #2, but it is totally lame. Not one shred of anything with my signature, no itemization of anything ever charged, and the usual Bill of Sale with no specifics (ie: no valid assignment)

Guess we will go to court on that one. If it comes to it, I can show them the unused card still stuck to the paper it was mailed on, with a giant sticker across the front that says it must be activated prior to use. I kind of hope it comes to that, frankly, to see the look on the faces of these thieves when they see it!

[zotzer]

Just an update....

Both of my cases were "non-suited". Any plaintiff is allowed one "non-suit", and the court must allow it. One was non-suited ahead of time, the second on-the-spot (I think they were hoping I would not show up). The judge said that he must allow it....in fact, we could go through all of our arguments, he could be set to rule, and if they interrupted and requested non-suit, he would have to grant it.....once.

So, I have figured out the JDB strategy, and why there is no case law in Virginia. Any direct challenge to a case which is not a slam dunk is non-suited. This permits them to continue operating the cash-cow operation of filing bogus affadavits, suing for money, and then expecting that the defendants will no-show so they can collect their money.

It seems like an attorney could build one helluva class for a suit, if so inclined....all of this money collected from hearsay (aka "bogus") affadavits used to procure warrants in debt, with the absolute expectation that most people won't defend themselves.

Disgusting!

Edited April 17, 2012 by zotzer

[1stStep]

Good that you're in the clear...

[zotzer]

Thanks 1stStep, although I only feel totally "in the clear" on one. The second is within the SOL (but not by much), so they could always refile. Based on what I have learned, however, that seems unlikely.

Thanks, all, for the information provided here!