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Summons, as individual and closed business


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:? Received two summons in California. Both served to me. Only the other is for my closed business. Same complaints, account stated and breach of contract. Spoken to two attorneys who advise ignoring closed business summons, and only defending myself. Does that make sense? The biz was a Franchise, which was shut down in Jan, 2009. The cr.card debt was business related debt. If default is obtained against biz. what happens??

I feel I need to answer both. If I do what defense do I offer for closed biz.? Does anyone have a similar story or know what i should do?

I'm being limited in my details because the suing party for OC (claims OC attorney) may be reading this as I speak.

I'm a newbie and apologize if I'm being cryptic!!

Thank you.

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Thanks guys.

1.@BTO429.... Bking the biz is not an option. It was a the fictitious name I had to use to operate the biz. So in other words it was the name of the Franchiser. The franchiser and I have parted ways legally in 2009 April. So in reality this fictitious name is non existant.

2. They have left the door open by including for 'DOES', I suppose at discovery.

3. The 'C' corp, that was incorporated and was dba the biz name, was disolved correctly in 2009. I ran it by the book and so piercing corporate veil is not an option for them.

4. @legaleagle...'either way if they get a judgement".......So if I ignore the biz summons, and they get a judgement against the 'biz' then I am responsible? Doesn't it make sense then that i answer the biz summons as well, ditto the individual response? Denial with affirmative defense for both? Or should I go motion for dismissal for the biz, on grounds of "Misnomer/Mistake or both"......see

CAPITAL ONE BANK v. CZEKALA

CAPITAL ONE BANK, N.A., Plaintiff-Appellee, v. Joseph CZEKALA, Defendant-Appellant (Frito Lay and Affiliated Companies, Third-Party Citation Respondent).

No. 3-07-0395.-- February 25, 2008

Any further advice/information is much appreciated. Thank you for responding.

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This is known as "piercing the corporate veil." If you were the owner of the business, be it a corporation or not, they will attack you personally. Most of these businesses are single proprietor LLCs, not General Motors. People mistakenly think that if they incorporate, they can evade responsibility for the business bills. Doesn't always work that way. Credit card agreements usually have language that binds the applicant personally. In fact, they require all your personal info when you apply for one. If this dodge worked, there would be no credit cards for small businesses.

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Thanks Legaleagle.

So I should just concentrate on my own defense. The 'assumed business name' has to be tied back to the corporation and me on alter ego charge. If I ignore the summons on the assumed name, and they do get a judgement against the assumed name there are no assets. The assumed name was never a corporation. How many courts have really bothered to pierce the veil?

If I were to file ' motion to dismiss' on 'assumed name' summons, how should I go about it? Are there any posts dealing with this issue?

Your thoughts please. Thanks again.

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  • 2 months later...

Just wanted to update my status.

Answered complaint as Individual. Then followed with Discovery and demand for BOP. They objected initially until confronted with case law (taken from this great forum and the brilliant and dedicated individuals who make this available- thank you). They sent in computer generated printouts from zero balance, along with generic agreement for year of account, verified by someone in VA, under CA law. They dismissed the case aganst the biz.

Their response to our interrogatories was a standard template of objections except for the BOP disclosure. They have now sent their Interrogatories for my response, minus admissions or demand for docs. Their Interrogatories is verbatim to the last posting of newbie "nojobnomoney". I have yet to answer them, and holding back from posting here, just in case!! I would be grateful for help in responding to that list. I could send it to some of you 'top guns' as a PM, but too new to qualify for that privilege!

CMC is next month. CMS has been submitted for trial w/out jury.

Now torn between three strategies:

1. MTC arbitration since arbitration clause is 'fine print' in agreement drawn on VA law. JAMS being one of the choices.

2. MTD since SOL under VA law has expired at time of complaint. Chambers vs Resurgence is compelling appeals case for out-of state law.

3. Take it to trial.

A response from the top-guns in this forum will go a long way to making a decision. If you can't find 'nojobnomoney' list of Interr. I will have to provide it one way or another.

Thanks once again. Sorry to hear about Seadragon's case at appeal. Guys like you are dedicated to helping others and such things should not happen. Good luck on your next move. What happened to 'chiquita55'?? She was considering arbitration, did she in the end?? Her case will be a 'case study' since it is the same OC.

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I do not think you had ballparked the amount being sued for. Arbitration really only works for amounts of $3k and less due to the expense on their side.

If SOL is up per VA law and you have case law, then motion to dismiss based on SOL. Never ever hold out on the SOL card if you can prove it, some courts might view it as a waiver if you "keep it just in case". File the motion and you may be done with the whole mess.

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I believe 1step is pointing in the right direction, assuming JAMS, is in the agreement they sent to you with the BOP. JAMS is the most costly for the otherside.

I agree with Kent that works best for debts under $5K, but even if the debt is in the $12K range, you still have an opportunity to create leverage for settlement.

So if you force this out of court and into arb, and they pay the bill to follow, during your first conference call you will determine choice of law. Either Virginia or California. Either way it goes your debt will be SOL, via Chambers if you end up with California, Cap One Contract is Virginia 3 yr. SOL there.

Finally, I have read those interoggs, and they aren't written by a top lawyer, so I would be suprised to see them follow you to arbitration and pay all the way to hearing.

Best of Luck

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  • 2 months later...

Just an update to set of RFA sent to them and their untimely response.

They had 30 days to respond...and were late by a week. I'd like to get some advice from the great minds on this forum to wack them with their own bat. Also, they have yet to respond to Meet and Confer of two months ago.

RFA:

1. At some point in the past, xyz either sold or assigned all of its rights, title, and interest in the acct. alleged in the complaint, to a third party.

2. There was never a written agreement signed by the defendant and xyz.

3. 'Mars' law governs this contract, inlcuding the applicable Mars SOL.

4. XYZ filed the complaint more than three years after receiving its last payment on the alleged account.

5. XYZ does not have record of any communication with the defendant about the alleged acct.

After a preamble litany of how their discovery is not yet completed even though we go to trial in a month.

They reserve the right to:

1. introduce other info; revise, correct, supplement , and clarify responses; object to use and admissibility of these responses, any docs produced pursuant to them, and their subject matter on any ground proceeding this action.

2. Neither a statement that info will be provided nor an objection to a particular RFA, is intended to mean that any info responsive to that particular RFA in fact exists.

(WTF !!)

Responses:

1. Deny

2. Objects to item 2 as it seeks docs that should already be within the defendant's possession, custody, or control. Further objects on grounds that it is vague and ambiguous as the customer agreement is not a doc that is signed. Further objects as the request seeks outdated docs that Plaintiff is not required to maintain. As TILA does not generally require that docs relating to open-ended credit accts. be retained for more than 24 months. Plaintiff notes that outdated records may no longer be available. Without waving said objections plaintiff has attached the current customer agrement and the billing statement history. This responding party reserves the right to supplement statement history; reserves the right to supplement its response if or when additional info is ascertained and the above response is given without prejudice to this responding party's right to produce evidence of any subsequently discovered facts or docs.

3. Plaintiff objects to the extent that the request seeks info that is immaterial, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects that the request is vague and ambiguous.

(Seriously??)

4. Plaint objects to the extent that the request seeks info that is immaterial, irrelvenat and not reasonably calculated to lead to the discovery of admissable evidence.

(seriously??)

5. Deny

They also had it verified:

I, Joe Blow, am authorized to verify this response on behalf of the plaintiff in the above captioned matter. I am familiar with the contents of the foregoing plaintiff's response to RFAs. The info supplied therin is based on my personal knowledge and/or has been supplied by my attorneys or other agents and is therefore provided as required by law. The info contained in the foregoing doc is true, except as to the matters which were provided by my attorneys other agents, and, as to those matters, i am informed and believe that thaey are true!! I declare under penalty of perjury under the laws of (defendant's state) that the foregoing is true and correct.

Executed .......(Mars and the commonwealth of mars)

Thanks in advance for any advise, input, case law or other tools I could use. I am working on Motion in Limine. Meanwhile I was considering this as well:

Untimely or unsworn responses to request for admissions are tantamount to no response at all. Zorro, Inc. Co. V. Great Pacific Securities Corp. (1977) 69 CA3d 90 7 (pdf)

Motion for Admissions to be Deemed Admitted also can be brought. C.C.P. §2030.280(B) (pdf)

FAILURE TO MAKE A REASONABLE INVESTIGATION

The propounding party may bring a Motion to Compel Further Responses or bring a Motion for Admissions to be Deemed Admitted if the answering party has not made a reasonable inquiry or has access to “readily available” information that would enable to admit or deny the matter. Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶8:1348

Alternatively, costs may be awarded after trial against a party for failure to inform oneself before answering C.C.P. Section 2033.420(a). The court may find there was no “good reason” for the failure to admit [smith v. Circle P. Ranch Co., Inc. (1978) 87 CA3d 267–proof showing that responding party failed to investigate, when the means of obtaining the information were at hand, supports finding there were no “good reasons” for its denial; hence cost of proof sanctions were justified.] Weil and Brown, Cal. Prac. Guide: Civil Procedure Before Trial (TRG 2010), ¶ 8:1348

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I posted the additional RFA responses from my case plaintiff, earlier today. I may have imporperly posted it. Anyway it is on this same Post. I'd love to get some feed back from the great minds.

Relating earlier to what I was saying about verification language from plaintiff's affiant, I was checking my court for recent rulings, and came across this one today. This same Judge will be hearing my case. It appears he may be a pretty fair individual. Here is his ruling on a collections case where defendant offerred no opposition to plaintiff's MSJ:

Motion for Summary Judgment

TENTATIVE RULING

The motion for summary judgment is denied, without prejudice to refile. Plaintiff has

not presented a copy of the Cardholder Agreement it alleges was breached.

Plaintiff’s evidence identified in the Separate Statement consists of documents

attached to the Affidavit of its Custodian of Records and Officer, XYZ. The

Affidavit states “The contents of this affidavit are believed to be true and correct”. A

ruling of the court is to be based upon facts presented to it, and not upon the belief of

the affiant; personal knowledge must be demonstrated.

Star Motor Imports, Inc. v.

Superior Court (1979) 88 Cal. App. 3d 201; Lyons v. Security Pacific National Bank

(1995) 40 Cal. App. 4th 1001. Failure of defendant to file an opposition does not

relieve the moving party of its burden to establish evidentiary facts of every element

necessary to entitle it to judgment. California Forms of Pleading & Practice (Matthew

Bender), Vol. 45, Chapter 537, Section 537.33, citing Vesely v. Sager (1971) 5 Cal.

3d 153, disapproved on other grounds in Strang v. Cabrol (1984) 37 Cal. 3d 720.

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Hi Vendetta,

I like going the Motion for Summary Judgment route. I understand you may be limited in what you wish to post, but knowing who the OC is could sway how I feel about this. We've all seen the problem with robo-signing in mortgages over the last several years. The same problem has arisen with credit card collections, and numerous banks have had their Affidavits struck as not being based on personal knowledge, hearsay, or fraudulently signed. Please note this article that covers the issue for many banks.

OCC Probing JPMorgan Chase Credit Card Collections - American Banker Article

While this article focuses on Chase, the Office of the Controller of the Currency has opened a huge investigation into numerous other banks, their Affidavits, and similar practices. Perhaps you can use some of this info to dispute the Plaintiff's Affidavit.

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