unemployednomore

CACH LLC vs. Me (update: dismissed w/o prejudice)

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1. Who is the named plaintiff in the suit?

CACH LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

I'd rather not say in case they actually search the internet and find my post. They are at least the third law firm to contact me about this debt.

3. How much are you being sued for?

$10,000+

4. Who is the original creditor? (if not the Plaintiff)

Chase

5. How do you know you are being sued? (You were served, right?)

Papers served.

6. How were you served? (Mail, In person, Notice on door)

Served to the face.

7. Was the service legal as required by your state?

Yes.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

I sent a letter asking them what they would accept for a settlement or payment arrangement. No response, just a suit. Prior to this letter I talked with them on the phone several times with no resolution for settlement or payment schedule.

9. What state and county do you live in?

CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

I'm still inside of the SOL

11. What is the SOL on the debt? To find out:

Four years (edited to add: but perhaps 3 since Chase apparently works with Deleware law - I'm still under 2 years since payment was made on the debt, however)

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Served with summons, reply required by end of June (I was served at the end of May and the literature suggests I have 30 days from date of service)

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I have 30 days from date served to respond. I did not get an interrogatory.

Included in the (badly photocopied) packet I got is the cover page with the "you must make a response" information followed by an Order to Show Cause Hearing for November, a Civil Case Cover Sheet (designating the case as a a limited case, a non-complex case and a case where monetary compensation is requested), and then the actual complaint which lists the charges as:

Complaint for Breach of Contract, Common Counts and Accounts Stated (at least I suppose that's what the case is).

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence or exhibits, just statements. The complaint suggests that CACH got the account from the OC and that "the transfer was memorialized in writing."

Edited by unemployednomore

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http://www.creditinfocenter.com/forums/there-lawyer-house/312479-posting-answer-california.html

You can tailor your response to the complaint allegations.

Use POS-040 at this link

California Courts - Browse All Forms By Name

You can also send a bill of particulars CCP454 look in the sample forms for one.

you have thirty days to answer, however if the complaint is vague you can demurrer. There is some good posts about that from jespercorp use the search for that term.

alot of stuff in my signature line links that is useful.

If it is for Breach of contract, open book account.

The opening moves are important.

So go to the off topic post 10 times and PM me I can help.

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That answer document is very good - I believe I will be able to modify it for my response.

It is looking as though all my answers will be:

Defendant denies the allegations contained in Para. XX

and

Defendant lacks knowledge about the truth and therefore denies allegations contained in Para. XX.

Are affirmative defenses required? I have read that they are an optional part of the answer.

I am also wondering why they put "doe" defendants in along with me as the defendant. I live alone and have for many years. I don't know who these mysterious people might be or why they would assume that other people would be involved here.

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Doe defendants are common in community property states, which I believe CA is. That just means if you're married, your spouse can be made to pay as well under certain circumstances. Look into that. Defenses are sort of a waste of time, unless you have something like the SOL. Why did you say SOL is 4 years? This sounds like Chase was the owner, they absorbed WAMU and all the records are gone from what I hear. You should be able to beat this one. Chase specifies DE law, 3 year SOL.

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Doe defendants are common in community property states, which I believe CA is. That just means if you're married, your spouse can be made to pay as well under certain circumstances. Look into that. Defenses are sort of a waste of time, unless you have something like the SOL. Why did you say SOL is 4 years? This sounds like Chase was the owner, they absorbed WAMU and all the records are gone from what I hear. You should be able to beat this one. Chase specifies DE law, 3 year SOL.

Not married and I live alone (have for years). So that's probably not something I need to worry about.

I was under the impression the SOL was 4 years in California. I'm unfamiliar with the abbreviation DE (I've got most of the abbreviations learned, but I haven't heard that one before).

Chase was the owner after they ate WAMU, yes. It was a Providian card initially, then WAMU was the owner. Chase then ate WAMU, but my card was cancelled before it was ever officially rebranded under the Chase banner.

I made payments to Chase/Wamu for a few years ($200-something a month) but I couldn't keep up with the payments after I was laid off a second time. They then tossed it over to CACH.

Now, they're suing me for "Breach of Contract" - doesn't that mean they have evidence of the account or are claiming to?

Edited by unemployednomore

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If the complaint is not verified, you can use a "general denial." This means you don't have to respond separately to each paragraph of the complaint. I prefer this method becuase you do not have to evaluate each paragrah of the complaint and decide whether you must admit or deny. Here is the form: http://www.courts.ca.gov/documents/pld050.pdf

A complaint is verified if it has a statement at the end saying something to the effect that the declarant has read the complaint and the allegations are true to the best of that person's knowlede. Most collection complaints are NOT verified. Look at the last page of the complaint in the following link: http://cluebytwelve.net/monkeys-lawsuit/complaint.pdf That is a verification. Like the exemplar, most verified complaints in California say so in the caption on the first page.

Doe defendants in California are not limited to community property situations. Doe defendant practice in California is unique, to my knowledge. If plaintiff does not know the identity of a person or entity that it believes is responsible in some manner for the allegations in the complaint, it may allege in the complaint that DOES 1-whatever are named as defendants. If plaintiff later learns the true identity of such a person or entity, it may simply amend the complaint to subsitute the true name of the person for DOE 1. That avoids having to file a new complaint and may also "toll" the statute of limitations.

Good luck.

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They just dismissed my case with them without prejudice. Curious if it is the same law office too, private message (pm) me with that if you will and I'll see if I can offer you any help. Also check out threads by 1111girl. And make sure you check on threads by calawyer. Calawyer is unbelievably amazing and has TONS OF EXTREMELY USEFUL information on here. After you get your answer submitted start reading their threads on discovery, you will be going there next :)! Get ready for the ride but know there is a VERY good chance you will be getting off with a smile on your face!!!

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I was under the impression the SOL was 4 years in California.

It may well be, but the agreement was formed in Delaware. Chase is located there, they insist that DE law applies to their cardholders, and you agreed to it. There is no controversy. No court should set aside the terms of a contract when both parties agreed to the choice of law provision. Use Google Scholar, search "choice of law" and you will not find one credit card case. They will be mostly car wrecks and divorces, or contracts that had either no choice of law or a conflicting one that would dramatically affect the outcome. They are forum shopping.

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Attempting to determine whether complaint is verified.

Most of the lines are a paint-by number approach (into the text of the document have been inserted various dates, the original creditor details, the amount claimed to be owed, etc.), but this statement stand out (and forgive me if I'm being dense on the verification):

"The allegations of this complaint stated under information and belief have evidentiary support, or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery"

This is the only statement within the document that isn't otherwise some variation of "this account was set up," "the OC and/or Plaintiff haven't been paid," and "defendant owes the plaintiff money."

And regarding the DOE defendants - I have lived alone (or with a roommate who had no bearing on my financial dealings) since 1997.

They just dismissed my case with them without prejudice. Curious if it is the same law office too, private message (pm) me with that if you will and I'll see if I can offer you any help. Also check out threads by 1111girl. And make sure you check on threads by calawyer. Calawyer is unbelievably amazing and has TONS OF EXTREMELY USEFUL information on here. After you get your answer submitted start reading their threads on discovery, you will be going there next :)! Get ready for the ride but know there is a VERY good chance you will be getting off with a smile on your face!!!

Thank you, it's a lot of information to digest and I have zero legal experience outside of watching copious amounts of television procedurals, so I'm certainly at the start of some serious research.

I was under the impression the SOL was 4 years in California.

It may well be, but the agreement was formed in Delaware. Chase is located there, they insist that DE law applies to their cardholders, and you agreed to it. There is no controversy. No court should set aside the terms of a contract when both parties agreed to the choice of law provision. Use Google Scholar, search "choice of law" and you will not find one credit card case. They will be mostly car wrecks and divorces, or contracts that had either no choice of law or a conflicting one that would dramatically affect the outcome. They are forum shopping.

I am not outside of the SOL for quite some time anyway, so I don't think it would enter into any sort of legal arguments on my end. This wouldn't come into play I don't believe until October-2013 (if under Delaware law) or October 2014 (if under CA law).

Edited by unemployednomore

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Likely going with a general denial.

And this form doesn't absolutely require affirmative defenses, correct?

So I understand the purpose of a general denial - it is simply a denial of the overall causes of action, right? Through this document I'm not denying items such as what my name is, where I live, etc, correct?

I considered utilizing "lack of standing" as an affirmative defense, but I have been on the phone with CACH representatives repeatedly in the past, attempting to get some sort of payment arrangement sorted out and I've sent them a letter requesting a payment arrangement.

So wouldn't that mean I've admitted that they have standing? I have not made any payments or set up any transactions with CACH since they've had the account.

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Likely going with a general denial.

And this form doesn't absolutely require affirmative defenses, correct?

So I understand the purpose of a general denial - it is simply a denial of the overall causes of action, right? Through this document I'm not denying items such as what my name is, where I live, etc, correct?

I considered utilizing "lack of standing" as an affirmative defense, but I have been on the phone with CACH representatives repeatedly in the past, attempting to get some sort of payment arrangement sorted out and I've sent them a letter requesting a payment arrangement.

So wouldn't that mean I've admitted that they have standing? I have not made any payments or set up any transactions with CACH since they've had the account.

Take a deep breath justice in California moves at a snails pace. First, lets look at the what their plan is, and then discuss how you interupt their plan or system.

Statistically, somewhere in the 95% range will ignore the complaint and will recieve default judgements, this is what they are counting on with you...

So by filing an answer, General Denial, you have already upset their system of collections. So unless you have waited till day 29 to find this site you have time to get an understanding of what the process is and how to systimatically breakdown their plan.

Momma has just posted the fact that she showed up for trial and they dismissed, they didn't want to go through with it, which means they know they didn't have enough real evidence to prove the case.

You should assume the same in your case, how will CACH ever get someone from Chase/WAMU or Providian to come to trial. The answer is they wont!

So get your answer finalized, again hopefully, you have 2 or 3 weeks to get it filed, if not you should be able to learn enough over the weekend to file Monday if you needed to.

For me I like to use all the time allowed based on the Civil Procedure, so if I have 30 days to file my answer, I would do it on the 25th day, using up time. You might say why? Your ultimate defense to any real debt is SOL, so time is your friend if you can extend it till you reach these dates, so I would be happy if a case takes a year to work it way through the system, assuming I win in the end, because I am that much closer to not having to deal legally with the debt.

You can do this lot's of help around here and good things to know....

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Answer to your questions in my opinion are-

Use a couple affirmative defenses, Lack of Standing and SOL. In the end you success doesn't rely on these, the real game is how will they prove their portion of the case.

Discussions on the phone could be a problem, but those recordings are meant to be used to defend the Debt Collecter in the event they are sure for an FDCPA claim. I have not heard of anyone on this board or others that a 3rd party collector has ever used recordings as part of their evidence to win the case.

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Answer to your questions in my opinion are-

Use a couple affirmative defenses, Lack of Standing and SOL. In the end you success doesn't rely on these, the real game is how will they prove their portion of the case.

Discussions on the phone could be a problem, but those recordings are meant to be used to defend the Debt Collecter in the event they are sure for an FDCPA claim. I have not heard of anyone on this board or others that a 3rd party collector has ever used recordings as part of their evidence to win the case.

Well, interestingly, those conversations were with a "law firm" in Arizona. They were the ones who harassed me initially. Then the letterhead changed and it was a different firm - this time located in California.

I doubt they would have saved those taped conversations. It was essentially just tape of them telling me I was a loser and they wanted their money.

They never responded to my letter either, but I would assume they would use this as evidence that I accepted their claim regarding debt validity.

I was considering lack of standing for the Affirmative Defense.

Not sure I should do SOL - the last time I paid was 10/10.

I have until the end of June to file (I got served on about the 30th of May) so I have some time, but I'm horrified that I'm going to fill something out wrong and get screwed.

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Likely going with a general denial.

And this form doesn't absolutely require affirmative defenses, correct?

You do not need to assert any affirmative defenses now. And, if you wish to assert one later you can do so with Court permission (rarely withheld).

So I understand the purpose of a general denial - it is simply a denial of the overall causes of action, right? Through this document I'm not denying items such as what my name is, where I live, etc, correct??

Yes. It denies the material allegations of the complaint. Use the general denial without concern. It is specifically permitted under California law.

I considered utilizing "lack of standing" as an affirmative defense, but I have been on the phone with CACH representatives repeatedly in the past, attempting to get some sort of payment arrangement sorted out and I've sent them a letter requesting a payment arrangement.

So wouldn't that mean I've admitted that they have standing? I have not made any payments or set up any transactions with CACH since they've had the account.

No. You have just never been made aware that it is an issue. It is like someone showed up at your front door and demanded payment for a debt you thought you might owe. Then someone whispered in your ear that it might be a good idea to make sure the guy doing the knocking actually has the right to collect. Your liability for the debt and CACH's right to payment are two separate issues.

CACH may well have purchased your account. But I have NEVER sen them prove it in Court. And I have been doing this a long time.

I have never researched the issue whether standing is an affirmative defense under California law in the sense that you must allege it or it will be waived. My belief, uninformed by research, is that it is a necessary element of plaintiff's claim and your general denial puts it at issue. But I think you should allege it as an affirmative defense anyway. It is easy to do and there is no harm done if it is not necessary.

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I have never researched the issue whether standing is an affirmative defense under California law in the sense that you must allege it or it will be waived. My belief, uninformed by research, is that it is a necessary element of plaintiff's claim and your general denial puts it at issue. But I think you should allege it as an affirmative defense anyway. It is easy to do and there is no harm done if it is not necessary.

Standing can be raised for the first time even on appeal. That makes anyone able to defend.

got a motion to vacate default judgment, include lack of standing. opposition to SJ, include lack of standing.

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All right, I'll see about filling out the general denial. I'm going to suggest lack of standing as an affirmative defense along with a line regarding the potential inclusion of additional defenses at a later date.

And what was said in this post is intriguing regarding schedule:

creditinfocenter.com/forums/1150658-post8.html

I am not really interested in doing a demurrer (if someone can convince me otherwise and tell me why it might be valuable, I'm sure I can plod through the documents required for such a submission), but doing this seems like the thing to do:

Response

BOP

Request for Admissions

Special Interrogatories

Document Request

This will likely take serious research so I don't muddle up the specifics, but hopefully I can impress upon the plaintiff that it would be unwise to argue with me.

Thank you everyone for your information so far.

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All right, I'm assuming I can get the information at the top of the General Denial form at courts.ca.gov/documents/pld050.pdf handled correctly.

I took at look at the "Sneeze Answer" and took my (slightly modified) Affirmative Defenses from that document:

1. The plaintiff has failed to state a claim for which relief can be granted. Failing to attach necessary writings to the complaint to support its allegations has not stated a claim for for which relief can be granted. Plaintiffs failure is unamendable as if plaintiff had the necessary writings they would have attached them. Plaintiffs assertion that the documents are in the possession of the adverse party are not grounded in fact.

2. Plaintiffs lack the legal capacity to sue. Plaintiffs failed to attached required writings specifically bills of sale to the complaint with required signatures to confer standing. The complaint doesn't show with specificity the chain of assignment of the alleged account at issue.

3. Defendant reserves the right to amend this answer at any time to add affirmative defenses at any time.

The first one seems wordy to me, but aside from correcting "it's" to "its," I didn't see fit to make any changes. My defense will obviously attack their proof regarding the actual sale.

Do I need to number these responses 1, 2 and 3? (odd question I know, but I want to maintain proper form for the response)

Also, I'd like to note: it would appear they're using California SOL as they reference "within the last four years" in the document. This would likely mean they're not using Delaware law as a basis for their offense. Not that it would make a difference since SOL wouldn't apply either way at this point.

In addition, under the "Account Stated" causes of action, the following text appears:

Defendant failed to object to the amount stated on the Account which constitutes admission that the balance stated was correct.

Why on earth would they suggest that a lack of admission or denial would constitute guilt?

Assuming my responses are correct, I'll work on the BOP next, I would guess.

Still wondering where to get the $370 for the court costs (good god expensive). I may sell my television.

Edited by unemployednomore
spelling

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It will buy you some time to gather up the fee. also take a copy to court DO NOT send a copy to plaintiff. The court will put this in the file in an envelope that only the court and you can see.

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All right, I'm assuming I can get the information at the top of the General Denial form at courts.ca.gov/documents/pld050.pdf handled correctly.

I took at look at the "Sneeze Answer" and took my (slightly modified) Affirmative Defenses from that document:

1. The plaintiff has failed to state a claim for which relief can be granted. Failing to attach necessary writings to the complaint to support its allegations has not stated a claim for for which relief can be granted. Plaintiffs failure is unamendable as if plaintiff had the necessary writings they would have attached them. Plaintiffs assertion that the documents are in the possession of the adverse party are not grounded in fact.

2. Plaintiffs lack the legal capacity to sue. Plaintiffs failed to attached required writings specifically bills of sale to the complaint with required signatures to confer standing. The complaint doesn't show with specificity the chain of assignment of the alleged account at issue.

3. Defendant reserves the right to amend this answer at any time to add affirmative defenses at any time.

The first one seems wordy to me, but aside from correcting "it's" to "its," I didn't see fit to make any changes. My defense will obviously attack their proof regarding the actual sale.

Do I need to number these responses 1, 2 and 3? (odd question I know, but I want to maintain proper form for the response)

Also, I'd like to note: it would appear they're using California SOL as they reference "within the last four years" in the document. This would likely mean they're not using Delaware law as a basis for their offense. Not that it would make a difference since SOL wouldn't apply either way at this point.

In addition, under the "Account Stated" causes of action, the following text appears:

Defendant failed to object to the amount stated on the Account which constitutes admission that the balance stated was correct.

Why on earth would they suggest that a lack of admission or denial would constitute guilt?

Assuming my responses are correct, I'll work on the BOP next, I would guess.

Still wondering where to get the $370 for the court costs (good god expensive). I may sell my television.

I don't know what the "sneeze answer" is, but I don't think very much of the affirmative defenses. I would stop after the first sentence of each defense. Plaintiff should probably be singular in #2. Number them 1, 2, 3, etc.

As for the account stated language, there is case law in California to the effect that if a debtor fails to object an account statement within a reasonable time, the law implies his agreement that the account is correct as rendered. But I wouldn't worry too much about this at trial. Unless you testify that you received each monthly statement, there will be no proof before the court of receipt. CACH did not mail the statements and has no personal knowledge that anyone else did either.

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It will buy you some time to gather up the fee. also take a copy to court DO NOT send a copy to plaintiff. The court will put this in the file in an envelope that only the court and you can see.

Reading this I see there is some verbiage regarding making payments or having an income that varies greatly each month. This is good - I will definitely use this in the hopes I can make payments or have the fee waived.

I would stop after the first sentence of each defense.

Noted, will reduce the verbiage.

The answer was something I found on this site - I've saved about 25 URLs at this point and about as many documents so I can't point toward its source atm.

Also noted regarding the CA law and my failure to object to the initial debt communication. I still think that's a really weird thing though. It doesn't make sense in my mind that if you failed to contest something that failure to respond would constitute guilt (or in this case debt approval).

I'm also curious as to why they've used more than one law firm to communicate the information to me. You'd think they would have had a law firm based in California be the first ones to contact me just for continuity's sake.

1. Plaintiff has failed to state a proven claim for which relief can be granted.

2. Plaintiff lacks the legal capacity to sue.

3. Defendant reserves the right to amend this answer at any time to add affirmative defenses at any time.

Thank you again for your comments.

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Wow, I'm getting letters in the mail from seedy lawyers trying to represent me in this case. How awful. Like I want my information plastered all over the courts for these people to read. As if I'd have the money to retain a lawyer.

It is best to wait until the end of the month to submit a response, correct? Is that the usual way people file these things?

(before I officially submit the answer I'm still going to go over to legal aid and get a few things sorted)

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Through their account stated charge, they are trying to say that the OC sent you statements and you did not object, so it must be right. However they are going to need the OC(s) to testify to that to make those records admissible. However they are never going to get them to court.

If they try to claim that their dunning letters created an account stated, then they have an even bigger problem called federal law. The FDCPA specifically bars the court from making the determination that you not disputing their dunning letters creates any liability.

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Through their account stated charge, they are trying to say that the OC sent you statements and you did not object, so it must be right. However they are going to need the OC(s) to testify to that to make those records admissible. However they are never going to get them to court.

If they try to claim that their dunning letters created an account stated, then they have an even bigger problem called federal law. The FDCPA specifically bars the court from making the determination that you not disputing their dunning letters creates any liability.

Wow, this is fascinating. Thank you for this information, I will definitely stuff it in my sack of ammunition.

I am working on my BOP now so that I can send it in the week following my Answer.

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Okay, so I've submitted my official answer/response. Going to the court house to do that was a lot less dramatic than I'd thought it might be. I applied for a pay-over-time request for the court fees. Hopefully the judge sees my broke-ness and grants it. I'm particularly low on money and don't want to get out of my fee, but I wouldn't be able to pay it in one chunk.

Now I'm doing the BOP - forgive me if I should know this already, but I know I have to "serve" the opposing party (I plan to utilize legal aid at the court house again, I just have to provide the stamp and envelope and it's easy). Do I also need to file it with the clerk? My searches show me plenty of examples of a BOP, but no actual "these are the steps you take" to complete the process.

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