Sued by FIA Card Services in CA

[hawkinst99]

Hello all. I've been perusing these forums for about a month now to help me out with my case and have found it very helpful. Unfortunately, I'm stuck and not sure how to proceed. Here are the particulars:

Sued for breach of contract and common counts.

Filed an answer generally denying the allegations.

Sent a request for BOP with the answer.

I just received the BOP which contains:

A generic cardholder agreement from BofA

Three months of statements (the last one showing the acct charged off).

I intend to respond to this as inadequate, but am not sure how to frame the response. Why is this an inadequate response from them? Do they need to produce every statement over the life of the account and a signed agreement? Please help!! Any assistance is greatly appreciated.

[hawkinst99]

One more thing. They also indicated on the pleading form that they "reserve the right to supplement this response upon the discovery of additional documents responsive to this request." I'm not sure if this is allowed under CCP 454.

[hawkinst99]

Looking over the cardholder agreement that they attached, under "Parties to Agreement" it says:

"We" "us," and "our" refer to Bank of America, N.A. (USA). "You," "your," and "yours" refer to any person (a) whose name appears on a Card or Statement or who uses this Account, or ( who otherwise agrees to be liable on the Account.

Nowhere does the agreement mention FIA Card Services. Should I amend my answer and add lack of standing to my defenses?

[usagi555]

FIA is BofA, or a subsidiary rather. You'll get nowhere with a lack of standing argument here.

As for the BoP, I'm not in Cali, but I can tell you that it is deficient. There are numerous posters on this board who have dealt with this issue and will be in to help. Basically, the advice you're going to get is to send them a letter informing them that their response was wholly deficient and you are giving them 5 days to correct it, else you will file a motion to compel a response. You need to get on this NOW, because otherwise they will come up with the statements just before trial and hose you with them. As it stands now, it sounds like the lawfirm doesn't have them yet, and you want the court telling them that they had better hand them over right now or else they will be precluded.

[hawkinst99]

So here is my draft response. My question, should I say something about the generic contract that they sent. I'm not sure what, if anything, to say about that. Thanks for any help.

TO PLAINTIFF, FIA CARD SERVICES, N.A. AND THEIR ATTORNEY OF RECORD:

On February 29, 2012, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof." As described below, plaintiffs’ response is entirely deficient.

The response served is not sufficient. Plaintiff has not provided an itemization of the account showing all charges and credits thereto. Nor has it provided any contract of assignment of the claim at issue in this litigation. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit.

Please serve a full response on or before April 7, 2012. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial.