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Need help on how to answer a summons and wording for BOP. Need several?'s answered.


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Hello I have been gathering lots of great info on this board but recently signed up as I tried to collect my thoughts before asking for guidance on here. I apologize in advance if I am not posting in the right forum. I have received a summons recently and it is marked as a "Verified complaint for breach of contract; common counts "amount demanded does exceed $10,000" I am trying to find the best way to tackle this.

We are answering by denying allegations and asking for a bill of particulars but not sure how best to word this on the answer and BOP?

I do have a few questions and if possible can we add this to the answer? If yes, how should it be worded?

1) They attached a undated consumer credit card customer agreement and a pricing addendum that is recent. It does not have my account info or name(s) or signature on it. The account is stated in the complaint but there is no original agreement attached.

2) The affidavit of debt lists my complete credit card # is this allowed? There is no bill of sale attached. The affiant states, "to the best of Affiant's knowledge, information and belief, there are no uncredited payments, just counter claims or offsets against the account and underlying debt" Can we argue against the Affiant'sclause "to the best of Affiants knowledge?" If yes, how should we address it?

3) They attached what seems to be a computer generated statement that does not look authentic. Looks like something that could be manually typed up as it is not a original copy of a statement on the credit companys letterhead.

4) I found out the law office handling this JDB case by Cach LLC pulled a regular inquiry on my credit report last year. Is this legal? I just received the summons.

5) They attached a copy of the letter in the summons that said they mailed us a written notice of the transfer of all rights under the agreement and mailed it via first class mail. They also mentioned a "a true and collect copy of the letter to defendent notifying them of Plaintiff's intent to seek attorney's fees and costs is attached in exhibit "X". We never received such a letter. How can we respond to this?

This is what I have for now. Sorry for the long winded post but I am trying to get everything together as I need to send the answer ASAP.

Thanks in advance for any help or light you can shed on this newbie!

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Thank you for your reply Seadragon

We were planning to use the PLD-C-010 Answer-Contract

form and than filing a BOP bill of particulars (CCP 454). Would this be OK as well? As far the individual questions do you have any insight on wording for #1, #2, & #5 and if #3 & #4 is even legal by Plaintiff to note or do?

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I am currently reading jespercorp's thread, thanks for the suggestion! I wanted clarification. Do you mean I need to file an answer and demurrer at the same time in addition to a General Denial for common counts? Is a GD allowed for a Verified complaint over 10k in CA? I thought I read somewhere this was not allowed but perhaps I remembered incorrectly. Thanks in advance!

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1) They attached a undated consumer credit card customer agreement and a pricing addendum that is recent. It does not have my account info or name(s) or signature on it. The account is stated in the complaint but there is no original agreement attached.

That's all they usually require in court, there are no "signed agreements."

2) The affidavit of debt lists my complete credit card # is this allowed? There is no bill of sale attached. The affiant states, "to the best of Affiant's knowledge, information and belief, there are no uncredited payments, just counter claims or offsets against the account and underlying debt" Can we argue against the Affiant'sclause "to the best of Affiants knowledge?" If yes, how should we address it?

I don't know if it is covered under any specific law, but I would file a motion to have this redacted as it is public record.

3) They attached what seems to be a computer generated statement that does not look authentic. Looks like something that could be manually typed up as it is not a original copy of a statement on the credit companys letterhead.

A billing statement like the credit card company would mail every month?

4) I found out the law office handling this JDB case by Cach LLC pulled a regular inquiry on my credit report last year. Is this legal? I just received the summons.

It's legal.

5) They attached a copy of the letter in the summons that said they mailed us a written notice of the transfer of all rights under the agreement and mailed it via first class mail. They also mentioned a "a true and collect copy of the letter to defendent notifying them of Plaintiff's intent to seek attorney's fees and costs is attached in exhibit "X". We never received such a letter. How can we respond to this?

"We didn't get it" is a weak defense. Assignment is mentioned in the credit card agreement, guaranteed, so that's moot. Atty fees may also be mentioned. Your goal is to make them spend more in attorney's fees than they can hope to collect.

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This means in addition to the PLD-c-10 you would need a "verified" answer. That means a declaration from you about your answer.

In Cali. If the complaint is demurrereable you can submit an answer at the same time the court will rule on the demurrer if the court denies the demurrer the answer is already there. If you would like a ruling on the demurrer first before answering the court would require the answer within 10 days after denial of demurrer.

On further review you didn't tell us the causes of action. breach of contract, any open book, EXCEPT account stated unless it is pled with the others then it becomes demurrereable.

Have you sent the BOP already if not get it out tomorrow if you have 10 days. I think the court will deny the demurrer in this instance as it is verified, gives the account number, and the amount at issue BUT the "on information and belief statement in the affidavit sounds pretty vague PLUS if the affidavit does not comply with the CCP 2015.5 language it is void. That would make the complaint vague.

So you are looking at 3 things:

1. what causes of action are in the complaint

2. is the affidavit sworn according to CCP 2015.5

3. and does it have any vague or ambigous language

That should help. let me see what you can do to F their day up:)

Edited by Seadragon
adding stuff
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  • 2 weeks later...

First cause of action -breach of contract ..it states "even in the absence of such agreement the issuance of credit card constitutes offer of credit and use of credit card constitutes acceptance of offer of credit Feder v. Fortunoff 474....etc...

Second cause -common counts ....."under the doctrine of money had and recieved"

Third cause of action - account stated....."plaintiff asserts that Defendants use of credit card ...represented a periodic account for which OC generated monthly statements..

Conditions Precedent - "plaintiff has performed all conditions precedent to filing of this action,or all such precedents have occurred .

MY Questions:

1)I've sent Answer stating denying allegations

2)Sending BOP ready to go in general format as advised by CaLawyer posts

Asking for "agreement and /or contract signed by defendant, the date of each transaction,description of services ,materials or goods supplied or other condtions rendered,the price or charge made for each item,and all payments or credits that have been made to the account ,detailed account of how plaintiff calculated amount owed any agreement assigning acount at issue to plaintiff"

Is this a proper BOP for situation?

3) the affidavit is from another state Iowa person states from OC employee but no penalty of perjury just best to affiant knowledge ..it is notarized ....can I preclude this affidavit using CCP 2015.5 ?

Thank you for all your Knowledge and responses in advance...

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  • 2 weeks later...

My Bop was answered:

Pursuant to 454 plaintiff provides response to BOP

1. Wells Fargo Cardmember Agreement( generic card agreement)

2. An Affidavit of sale stating Affiant Sales Liason from OC sworn to make statements:

1. There is due debtor (full acct #) principal $$$$$ pursuant to terms of Acct agreement

2. On (date) sold transferred assisgned to JDB with full power authorirty to perform all acts neccesary for collection ,settlement , judgement, etc. Further Affiant acknowledges to the best of Affiants knowledge ,information and belief , there are no uncredited payments , just counter claims or offsets aiaing the Account or underliying debt

3. Creditor is originator of account and was servicer of the acct prior to sale of account to buyer.

(signature)

State Iowa

My question is this reply adequate on their side? all these items were included on original complaint . I have also received Request for Admissions:

1) Admin that YOU are resident of the county in which LAWSUIT is held

2) YOU signed original app for C.card in county which lawsuit was filed.

3) YOU applied to O.C. for issuance c.card

4)You received card and used the card

5) Admit accepting each such advance under terms of agreement applicable to acct YUou became bound to pay amountsof such advances, and additional charges i connection with use of C.card

6) Admit you received monthly statement containing balance due and list of all charges and advances you made on C.card

7) Admit that YOU did not within 60 days of sate of any billing statement of account send to O.C. a written dispute of billing statement

8) Admit that you owe after allowing all just lawful payments credits offsets the sum of 0.00 as of charge off sate on c.card

How should i respond?

Also recieved special interrogatories:

pusuant to CCP 2030 with such answer provided 30 days to address counsel fully in writing and under oath. You should deliver true copy of answeres to undersigned attorney. Please note after you submit your responses to these interrogatories you learn any such response was either incomplete when made although complete and correct made...etc....

1. Identify all DOCUMENTS(the term Documetnt........as defined in california Evidence Code 250and including tangible physical things from which info can bge obatined by you each and every copy etc. pertaining to each denial of a material allegation and each special or affirmative defense.etc.

2. State all facts upon which YOU base YOUR denial or special defense

3. Identify all PERSONS with knowledge of facts of this DISPUTE .

4. Identify all docujments which YOU signed in connection with use of c.card acct#

5. Idnetify all Items which You obtained with credit extended to you.

also Production of Documents:

defintions DOCUMENT, YOU ,PERTAIN ANSWER, IDENTIFY, C.Card. DISPUTE written statement by O.C., CHARGE OFF DATE (_/__/2010)

In response to this request of production if you claim document is LOST DISCARDED DESTROYED you must identify such document by providing :

1. Description of doc

2.Date disposal or loss

3. MAnner of loss

4.Reason for diposa;

5.Person authorizing disposal

6.person having knowledge of disposal

7. Person disposing

DOCs to be produced

1.produce all DOCs evidencing between YOU and O.C.

2.All your financial records march 1 ,2006 to present

3.All documents evidencing payments to O.C.

4. All Docs which YOU allege evidence that anyone other than YOU is responsible for obloigation for C.card

5. All DOCS between you and Plaintiff

6.DOCS generated by third party pertaining to LAWSUIT

PLEASE ADVISE ON WHAT I CAN DO IN RESPONSE TO THESE REQUESTS:

Calaywer,seadragon mommamia THANK YOU TO ALL WHO RESPOND.:D

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  • 4 months later...
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