Up against CACH/Mandarich, violated FDCPA, need more amo

[momof2]

Hello,

Finally chimed in after actively reading through the forums because I felt my knees buckle this evening to find RFP, RFA in my mailbox today.

I have been reading through these posts since first receiving a Summons from CACH/Mandarich Law Group on 1/15. I attempted to get a head start and sent BOP with my answer and filed with court, to which the CA replied that it was "inapplicable to account stated." Darn! I have recently received RFP, RFA, and Interrogatories, and will use some of the great stuff I found on this forum as I did the first time around...but my actual question is based on the following of events: The next day after being served, I received a message from a rookie rep at the collection attorney's office saying to call him...to which I did and he proceeded to negotiate a settlement with me and indicated this was "pre-legal." Seemed to me his system/notes was not up to date. In any case, I researched my rights under FDCPA, and have concluded the following:

Your Representative,____, who in his attempt to contact me to collect a debt on behalf of your client CACH LLC (Plaintiff), has violated my consumer rights under the Fair Debt Collection Practices Act, Section 806(6) [Foti v. NCO Financial Systems, Inc., 424 F. Supp. 2d 643 (S.D.NY 2006)]. His recorded voicemail has been saved as evidence and note that in filing my pleading, I have reserved my rights to a counter claim and will consider naming your firm who at the time of the call was acting as collection attorneys on behalf of Plaintiff [Ditty v. Checkrite, 973 F.Supp.1320, 1335 (D. Utah 1997)].

Do I have anything useful here, if so, when should I present, how do I present, I know this won't go away easly, but neither am I. Your help is much appreciated.

Edited March 2, 2012 by momof2

[Coltfan1972]

Your violation is the pre-legal statement.

[momof2]

Thanks, Coltfan1972. I guess I should subpoena for that recorded call, because he kept saying it on the call. The message left on my voicemail was his name/company and to call him...no mini-miranda as required by FDCPA.

[Coltfan1972]

The message left on my voicemail was his name/company and to call him...no mini-miranda as required by FDCPA.

That is a catch 22 for the collector, which is wonderful, but the courts are somewhat mixed on if this a violation or not. However, the majority I read, it is a violation.

Is the collector or agency that called you a party to the lawsuit?

[calawyer]

I attempted to get a head start and sent BOP with my answer and filed with court, to which the CA replied that it was "inapplicable to account stated." Darn!

Does the complaint ONLY allege a cause of action for Account Stated? If plaintiff also alleges breach of contract or other common counts such as money had and received, goods sold and delivered, etc. then they are wrong. You are entitled to a BOP for these claims.

[BTO429]

An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance.” McHugh v. Olsen

“Mere failure to object to an account sent by mail to one who has had no dealings with sender does not give rise to presumption of acquiescence of debt.”C. & H. Contractors, Inc. v. McKee,

“Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”

Dionne v. Columbus Mills, Inc

“Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co

”Account stated” is agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.”

Nants v. F.D.I.C

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”

Recreation Corp. of America v. Jack Drury & Associates, Inc.

“An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.”

Nicolaysen v. Flato

There can be no liability on an account stated if there has been no mutual agreement, and the mere presentation of a claim and its retention without objection cannot of themselves create a liability.

Braun v. Noel,

For an account stated to exist there must be

an agreement between the parties that a certain balance is

correct and due and an express or implied promise to pay this

balance. See Raben Builders, Inc. v. First Am. Bank and Trust

Co

Where there is no such agreement between the parties, there can be no recovery on this theory. The action is premised on a sum certain and after it is proven, the account stated may be attacked only by proof of fraud, duress, mistake or other grounds cognizable in equity for the avoidance of an instrument.

Where there have been no business transactions giving rise to the preexisting obligation, a statement of account will not support an account stated. Architectronics, Inc. v. Salem-American Ventures, Inc

Need any more cases? I have tons of them in my law books.

[Justicewanted]

Will post more another time when I have more time. Search on line.

Pull a copy of your credit report, Cach under another name pulls a hard copy almost always this is illegal. The FTC on the FCRA said that the possibility that a party may be involved in litigation involving a consumer does not provide a permissible purpose for that party to receive a consumer report. This applies to all litigation/pre litigation discussions and settlement preparations.

Another case to look up. Cach vs Jon Askew- This verdict was from Jan 2012 Cach lacked standing to sue and it goes through point by point what is required by law to prove they have standing most JDB will never be able to pull all of the proof required.

Good luck

[bohey]

I thought I would check in. I am still waiting for CACH-MANDARICH to respond to my objection to their deficient BOP.

They asked for 45 days to respond to the original BOP, then sent insufficient docs. I objected and requested the contract and all statements, etc. It has been 120+ days now and no response. Can I get this dismissed in some way? Do I file a motion to dismiss a motion in limine a motion to compel?

What do I do? It is in their ballpark ... and I don't want to miss my opportunity ... isn't it the goal of the courts to expedite the legal process and relieve the courts of inadequate/frivilous lawsuits?

Thank you so very much for your advice and direction! I appreciate it so very much.

Bohey

[Coltfan1972]

Isn't it the goal of the courts to expedite the legal process and relieve the courts of inadequate/frivilous lawsuits.

I would not exactly call their lawsuit a frivilous lawsuit, more like a very beatable lawsuit.

[bohey]

I would not exactly call their lawsuit a frivilous lawsuit, more like a very beatable lawsuit.

Thanks Coltfan - My impression exactly!

Your advise?

Motion to compel seems hardly necessary at this juncture; motion in limine, can I go for a motion to dismiss? Any helpful threads to where'bouts you might direct me? Bohey

[momof2]

Does the complaint ONLY allege a cause of action for Account Stated? If plaintiff also alleges breach of contract or other common counts such as money had and received, goods sold and delivered, etc. then they are wrong. You are entitled to a BOP for these claims.

Summons says:

Complaint For:

1. Breach of Contract

2. Common Counts

FIRST CAUSE OF ACTION (Breach of Contract)

...refers to previous paragraphs 1-14, and Item 7 "Defendants agreed to comply with the written terms and conditions governing the ... but not limited to, charges for the purchase of goods and services and/or cash advances..."

SECOND CAUSE (Account Stated)

I was going to subpeona for documents since I felt I lost my BOP request, should I pursue subpeona or address the BOP?

Edited March 2, 2012 by momof2

[momof2]

That is a catch 22 for the collector, which is wonderful, but the courts are somewhat mixed on if this a violation or not. However, the majority I read, it is a violation.

Is the collector or agency that called you a party to the lawsuit?

I need to make a correction, the Rep that called me is with collection attny's office. Additionally, after pulling my credit report I am so fired up because orginal creditor did some really shady stuff with reporting the past due amounts, and reported that I paid when I in fact didn't! This is what I have so far with my issues with the OC now:

Wells Fargo has falsely reported the date of last activity on my account by reporting inaccurate and false payment dates on my credit report, thereby violating my consumer rights provided by the FCRA, and is in direct violation of FCRA Section 605©Running of the reporting period, violation fine $1000.

Wells Fargo did not comply with the time period with charging-off accounts ("Open-end retail accounts that are placed on a fixed repayment schedule should follow the charge-off time frame for closed-end loans") set forth by the Uniform Retail Credit Classification and Account Management Policy, and "in no case should the charge-off exceed the time frames stated in this policy" as a result Wells Fargo has unlawfully sold this account to Collect America (I'm reaching with this statement, but want to have it as a back up if I need it, that's assuming I get that far)

Ref: FDIC Law, Regulations, Related Acts: 5000-Statements of Policy, Account Management

I want to take everyone to court now! They're just abusing the system, and this is on the credit side, no different than the hot water WF got into for their illegal foreclosures.

Working late tonight because I am going to court clerk tomorrow to see about filing for subpeona...thanks all for your help.

Edited March 2, 2012 by momof2

[momof2]

An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance.” McHugh v. Olsen

“Mere failure to object to an account sent by mail to one who has had no dealings with sender does not give rise to presumption of acquiescence of debt.”C. & H. Contractors, Inc. v. McKee,

“Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”

Dionne v. Columbus Mills, Inc

“Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co

”Account stated” is agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.”

Nants v. F.D.I.C

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”

Recreation Corp. of America v. Jack Drury & Associates, Inc.

“An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.”

Nicolaysen v. Flato

There can be no liability on an account stated if there has been no mutual agreement, and the mere presentation of a claim and its retention without objection cannot of themselves create a liability.

Braun v. Noel,

For an account stated to exist there must be

an agreement between the parties that a certain balance is

correct and due and an express or implied promise to pay this

balance. See Raben Builders, Inc. v. First Am. Bank and Trust

Co

Where there is no such agreement between the parties, there can be no recovery on this theory. The action is premised on a sum certain and after it is proven, the account stated may be attacked only by proof of fraud, duress, mistake or other grounds cognizable in equity for the avoidance of an instrument.

Where there have been no business transactions giving rise to the preexisting obligation, a statement of account will not support an account stated. Architectronics, Inc. v. Salem-American Ventures, Inc

Need any more cases? I have tons of them in my law books.

This really helped. I did research and found a post in this forum that someone else prepared to beat account stated. Nice, account balance is not correct because WF illegally reported payments to the account (and they only did this because they had my old WF checking account on file, which was closed prior to the "payment posting")...they also did this on another account and claimed I made three consecutive payments...this is crazy that they think they can do this! Guess, they figure they can authorize a payment from my closed checking acct without my permission...and then turn around and say "oh, the [bank] returned your payment" -- hmmm, you think!?!

Edited March 2, 2012 by momof2

[momof2]

Does the complaint ONLY allege a cause of action for Account Stated? If plaintiff also alleges breach of contract or other common counts such as money had and received, goods sold and delivered, etc. then they are wrong. You are entitled to a BOP for these claims.

Attorney's response to my BOP:

Dated 2/7/12

"I am writing in regards to your demand for a Bill of Particulars. Pursuant to California law, we believe your request is in applicable for the account stated pled in the subject complaint [Distefano v Hall (1963) 218 Cal. App. 2d 657, 677]. As a result, please be advised that we will not provide a response accordingly.

Should you have any questions or concerns feel free to contact our office."

Read through more posts tonight/this morning, and I prepared a M&C letter for insufficient response to BOP, will save the trip to court for another day and prepare my response to discovery requests - which will be easy because they did not answer my BOP. In turn sending out my own ROG,RA, PODs

Edited March 2, 2012 by momof2

[1stStep]

If they are only pleading account stated, then a BOP is not appropriate...but I'll bet dollars to donuts they also sued for breach of contract, money lent or received, or possibly all three...

That being the case, a BOP is appropriate for breach of contract or money lent or received.

You'll probably need to send another meet and confer letter stating that fact - give them 10 more days to comply and then file a motion to preclude.

[calawyer]

Summons says:

Complaint For:

1. Breach of Contract

2. Common Counts

FIRST CAUSE OF ACTION (Breach of Contract)

...refers to previous paragraphs 1-14, and Item 7 "Defendants agreed to comply with the written terms and conditions governing the ... but not limited to, charges for the purchase of goods and services and/or cash advances..."

SECOND CAUSE (Account Stated)

I was going to subpeona for documents since I felt I lost my BOP request, should I pursue subpeona or address the BOP?

Send them a letter like this (modified for your circumstances:

Dear___

Thank you for your letter dated ___ regarding the Bill of Particulars served in this matter. In that letter, you refuse to respond to Defendant’s Bill of Particulars claiming that a Bill of Particulars is not required for plaintiff’s claims of account stated. You ignore, however, the fact that plaintiff's complaint contains a cause of action for breach of contract.

You may wish to review the case of Distefano v. Hall. While Distefano does suggest that a Bill of Particulars may not be required for an account stated claim, the Court reached the opposite conclusion with respect to breach of contract: “Section 454 has received a fairly broad interpretation and has been construed to cover almost any kind of contract action for a money claim made up of more than one item.” 218 Cal. App. 2d 677.

I cannot understand why plaintiff would object to providing the most basic discovery that will be necessary to prove its claims. In any event, your erroneous objection to the Bill has already caused plaintiff’s response to be tardy. As the Distefano court noted, “The penalty for failure to furnish a bill of particulars, when one has been demanded, is that no evidence will be allowed in support of the cause of action pleaded.”

Please respond without further delay or defendant will seek relief from the Court.

Good luck.

[legaleagle]

Uniform Retail Credit Classification and Account Management Policy, and "in no case should the charge-off exceed the time frames stated in this policy"

I don't see where this applies, credit cards are open end accounts. I have never heard of an OC "converting" a credit card debt to a fixed repayment schedule, or closed end account, unless it was a credit union that paid off your debt and converted the debt to an installment loan.

as a result Wells Fargo has unlawfully sold this account to Collect America

Not applicable if the above is true, they have a perfect legal right to sell your account to a junk debt buyer. This works in your favor, as JDBs are easier to beat. This is like complaining that you were supposed to play the Superbowl Champions but a high school football team showed up instead.

[momof2]

I know I was reaching with that one; but I will do the Meet & Confer letter as calawyer referenced and see what I get from that. Thanks so much, I am seeing the way through all of this and from other posters' experience.

[momof2]

legaleagle: Prior to charge-off, I had agreed to a fixed repayment plan to repay over 3 year period in equal installments, then life happened, called them up and said "I can no longer pay, remove from EFT schedule," .. thought it applied to my understanding of that section

Edited March 2, 2012 by momof2

[momof2]

Thanks!

[legaleagle]

Those are not contractual in nature, they do not apply. If you do not honor the agreement you made, you revert to the original terms of the cardholder agreement. Also, your previous post said:

Summons says:

Complaint For:

1. Breach of Contract

2. Common Counts

Under breach of contract, the BOP is valid. You should pursue this. They are bluffing, they think you won't know any better. Your meet and confer letter states this, you should prevail.

[momof2]

I am hopeful today, nothing yet from the attorney's office, after I sent the letter calawyer posted for me along with my response to discovery. I had given them another ten days to respond, and that time has expired. From other posts, I believe the next step is to file a motion with the court...searching through other posts for pointers on how to address...

[calawyer]

I am hopeful today, nothing yet from the attorney's office, after I sent the letter calawyer posted for me along with my response to discovery. I had given them another ten days to respond, and that time has expired. From other posts, I believe the next step is to file a motion with the court...searching through other posts for pointers on how to address...

Thread containing Motion to compel: http://www.creditinfocenter.com/forums/there-lawyer-house/307597-objection-bop-2.html

It could be improved, however. Let's do it with your motion.

[mommamia3]

If they don't motion to compel can they go to court and object on the basis that they didn't send it in response to the bop citing 454?

[momof2]

thanks calawyer...funny I had bookmarked a similar thread a few months back expecting to get to this point, working on this tonight.