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Equable Ascent Financial in Cali


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Hello Everyone I'm Back..

I'm helping a relative and here's the situation:

Relative Served: April 2012

BY JDB: Equable Ascent Financial

Relative lives in State and County: California

Amount Sued: $9k

Common Counts: Open Book, Account Stated, Goods Sold and Money lent

SOL: 4yrs

Here's what my relative has done so far:

1. Answer with General Denial

2. Sent BOP

3. Response from JDB: sent only final statement

4. Sent several meet and confer letters

5. Lawyer's response is Plaintiff will pursue this as Account Stated and will not be supplementing BOP

6. Relative has filed MTC BOP set for end of July

Calawyer or Seadragon on any of the experts who have helped me in the past. Here is my question: Since the motion hearing is end of July, my relative hasn't received any opposition brief so that relative can respond. Secondly, just saw on court's website Monday that Plaintiff's lawyer just filed partial dismissal wo prejudice on 'Open Book' only and has not sent my relative anything in this regard.

So if my relative doesn't receive this info before hearing and Plaintiff's lawyer brings this up at the hearing wouldn't this be considered 'New Matter' for the Defendant?

And can they just dismiss bits and pieces of their claim like that?

I know the other common counts still stands for BOP: goods and money lent.

Please advise. Helping my relative build a case.

Edited by helpme
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OC is Chase?

Year account opened?

Date of first delinquency?

OC is Chase? Yes

Year account opened? Don't know. They cant find any record. But thinks it was open around 2005/2006

Date of first delinquency?July 2010.

Edited by helpme
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You can beat the case in court against this JDB especially with Chase as the OC.

I feel it's more fun to move the case to JAMS.

-Demand JAMS. Notify Equable. Offer stipulation to the law firm to arbitrate in JAMS and dismiss the court case.

-When they refuse, you have a FDCPA/Rosenthal claims built in.

-They might pay the case management fee, but are not likely to pay the 1st retainer of $2-5k.

You could end up with cash and a dismissal w/prejudice. Good luck!!

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Hey Helpme,

So sorry to hear you have a relative going through this process now. Bummer. At least you've been there, and can assist them to a degree.

On the partial dismissal wo prejudice on 'Open Book'

Wait....what?!?

Wow, how weird is that?

Know this, helpme....Equable ascent are profoundly disorganized....and questionably professional. Seriously. I've talked to others here who went up against them in court. Members shared w/me that Equable made a multitude of mistakes during the course of their case. It wouldn't surprise me at all, if they just made something up.

As I'm also curious what this means, I'll be watching this thread for when calawyer responds to you.

:confused:

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Hey Helpme,

So sorry to hear you have a relative going through this process now. Bummer. At least you've been there, and can assist them to a degree.

On the partial dismissal wo prejudice on 'Open Book'

Wait....what?!?

Wow, how weird is that?

Know this, helpme....Equable ascent are profoundly disorganized....and questionably professional. Seriously. I've talked to others here who went up against them in court. Members shared w/me that Equable made a multitude of mistakes during the course of their case. It wouldn't surprise me at all, if they just made something up.

As I'm also curious what this means, I'll be watching this thread for when calawyer responds to you.

:confused:

Hi Tigger. Thanks. Can you believe it? I still have my hearing for taxation of Memorandum of cost with Midland.

I got my relative this far and now after reading calawyer's post about opposition brief, I thought I better check the court's site and I'm glad I did.

I would have thought my relative would have received this partial dismissal in the mail but didn't. So yes, waiting on calawyer.

Good to hear from you...

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Hi Tigger. Thanks. Can you believe it? I still have my hearing for taxation of Memorandum of cost with Midland.

I got my relative this far and now after reading calawyer's post about opposition brief, I thought I better check the court's site and I'm glad I did.

I would have thought my relative would have received this partial dismissal in the mail but didn't. So yes, waiting on calawyer.

Good to hear from you...

Plaintiff can dismiss a cause of action. You can’t really make very much of this with respect to your motion to compel.

But it is actually great news. You now have one fewer claim to deal with. And, if plaintiff dismisses its goods sold and delivered and money had and received claims, you will have only one cause of action to defeat at trial.

Plaintiff should serve you with a copy of the request for dismissal. Plaintiff also must file an opposition to the motion and serve you by overnight delivery. You must serve your reply the same way.

Plaintiff will probably say the motion is unnecessary because it has dismissed one (or several) claims. You should respond that plaintiff never offered to do this in response to your meet and confer efforts (if true). It was only this motion that caused plaintiff to dismiss these claims. And, since plaintiff has dismissed without prejudice, and only after you filed the motion, you would ask the Court to enter its order of preclusion in the event plaintiff attempts to revive any of these causes of action.

Nice going.

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Hi Calawyer, I'm sooooo glad to hear from you again....

But it is actually great news. You now have one fewer claim to deal with. And, if plaintiff dismisses its goods sold and delivered and money had and received claims, you will have only one cause of action to defeat at trial.

Yes this is great news. However, they didn't dismiss the goods sold and delivered and money had and received. So BOP is still deficient regardless of whether they dropped 'Open Book' or not and asking the courts to grant mtc is still Good, right?

You should respond that plaintiff never offered to do this in response to your meet and confer efforts (if true). It was only this motion that caused plaintiff to dismiss these claims. And, since plaintiff has dismissed without prejudice, and only after you filed the motion, you would ask the Court to enter its order of preclusion in the event plaintiff attempts to revive any of these causes of action.

The first m&c letter relative stated that the BOP was deficient and gave the reasons why. The letter ended with, in the spirit of cooperation, Defendant will not at this time seek relief from the Court provided that a response is received on before June, 2012. Otherwise, if Plaintiff fails to respond, Defendant will notice a motion for a court order requiring Plaintiff to furnish a further BOP which Defendant is entitled.

So the response back was they were going to pursue this matter as account stated instead of open book. That was June 2012. Relative filed motion July 2 and now today just received opposition and dismissal wo prejudice just for 'Open Book' filed w/courts July 16.

So based on your statement above I would say yes. Plaintiff only filed Dismissal wo prejudice on 'Open Book' only after relative filed mtc.

since plaintiff has dismissed without prejudice, and only after you filed the motion, you would ask the Court to enter its order of preclusion in the event plaintiff attempts to revive any of these causes of action.

So for the above statement, since they only dropped one of the cause of action, relative in its response to opposition brief state 'Court to enter an order of preclusion in the event plaintiff attempts to revive this cause of action'. Is this correct? Which means Plaintiff can't try to submit cc statements as evidence at trial, right? Because that would mean they revived the 'Open Book' theory.

In addition, since the other causes of action still applies, relative will state under memorandum of points and authority the case laws for the other 2 causes of action as well as the following: Demands for a Bill of Particulars arise most often in the context of common counts. kawasho Internat., U.S.A. Inc. v Lakewood Pipe Service , Inc., (1983) 152 Cal. App. 3d 785, 790.

On a lighter note: The format of the Response to Plaintiff's Opposition Brief shall have the following: Statement of Facts, Argument and Conclusion. Correct?

Thank You again and btw- your inbox is full so I couldn't pm you.:mrgreen:

One last thing: How many days before hearing does relative have before they have to overnight response to Plaintiff? And Should the Dismissal wo prejudice have a POS attached? I was trying to find your post on what gets POS and what doesn't...

Thanks again

Edited by helpme
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On a lighter note: The format of the Response to Plaintiff's Opposition Brief shall have the following: Statement of Facts, Argument and Conclusion. Correct?

Taking a peek at out Opposition Brief (entitled, Opposition to Motion to Tax Costs)...that looks accurate. :)%

Though, I'm sure he'll come along and provide assistance. Just wanted to offer support (as he assisted w/ours, too) in case you were stuck, and needed to move on. :mrgreen:

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Taking a peek at out Opposition Brief (entitled, Opposition to Motion to Tax Costs)...that looks accurate. :)%

Though, I'm sure he'll come along and provide assistance. Just wanted to offer support (as he assisted w/ours, too) in case you were stuck, and needed to move on. :mrgreen:

Hey Tigger, Support is always Good to relieve stress or better yet, to know there's someone out there thinking about you. Thank You. You're so supportive to everyone on this forum.

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We won't really know what causes of action plaintiff dismissed until we see the request for dismissal. Sometimes clerks abbreviate in the docket entry. But I agree that you should mention the other causes of action if plaintiff only dismissed the Open Book cause of action. In fact, you might want to mention that plaintiff said it would only proceed on the account stated claim.

Anything filed in Court should be served on the other party.

CCP 1005(B) has the deadlines for the filing of opposition briefs and reply briefs: CA Codes (ccp:1003-1008) Subsection C requires service by fax or overnight mail, etc. (but note that there are other rules for fax service in CCP 1010.6 which may make it impossible to use).

Your reply can be short and just respond to plaintiff's opposition. Or you can summarize your motion and then pick apart the opposition (my preference). I usually have an introduction, argument and conclusion.

Good luck.

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I am betting that they are dismissing the open book counts in order to get out of answering the BOP.

BOPs are not allowed with account stated...that being the case, your strategy needs to shift.

Hi 1stStep

Nice to hear from you. I totally agree with you on both of your statements. I believe on one of your posts to a newbie that these people were beatable. That's why I stepped in to help my relative. I will probably look into 1) Real Party in interest 2) BOS that was sent to relative and go from there.

Thanks...

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We won't really know what causes of action plaintiff dismissed until we see the request for dismissal. Sometimes clerks abbreviate in the docket entry. But I agree that you should mention the other causes of action if plaintiff only dismissed the Open Book cause of action. In fact, you might want to mention that plaintiff said it would only proceed on the account stated claim.

Agreed. The docket states 1. To the Clerk: Please dismiss this action as follows: a(2) Without Prejudice b(6) Other: **Dismissal as to Paragragh CC-1A(1) of the Complaint Only**

FYI-in the Complaint Cause of Action - Common Count CC-1a(1) on an Open Book Account the others still applies. CC-1b(3) for goods sold and delivered and (4) for money lent by plaintiff to defendant at defendant's request.

Anything filed in Court should be served on the other party.

Agreed. Relative was never served this Dismissal. It was part of the Opposition Brief as Exhibit "B". Are there Sanctions for this, for not being served? If so, how can I find the CCP? Can this be entered in the Response to Opposition?

CCP 1005(B) has the deadlines for the filing of opposition briefs and reply briefs: CA Codes (ccp:1003-1008) Subsection C requires service by fax or overnight mail, etc. (but note that there are other rules for fax service in CCP 1010.6 which may make it impossible to use).

Will read up on this. Thank You for this information

Your reply can be short and just respond to plaintiff's opposition. Or you can summarize your motion and then pick apart the opposition (my preference). I usually have an introduction, argument and conclusion.

I like the taking it apart direction. It just burns me that they can just dismiss bits and pieces like that. :twisted:

So I will be emailing you a copy of their opposition. Hope you don't mind. Thank You again....

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I thought it was all or nothing with a dismissal. Don't they have to file an amended complaint. and is it not allowed to dismiss causes of action to avoid issue sanctions?

just seems weird that they are allowed a partial dismissal and not amending a complaint.

Maybe that should be the reply, That they did not amend their complaint and that there is no prima facie of an account stated.

How thoroughly odd. oh i get it they dont want to pay the fee for an amended complaint.

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I thought it was all or nothing with a dismissal.

Nope. Plaintiff can dismiss a cause of action:

CCP 581© A plaintiff may dismiss his or her complaint, or any cause of

action asserted in it, in its entirety, or as to any defendant or

defendants, with or without prejudice prior to the actual

commencement of trial.

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Nope. Plaintiff can dismiss a cause of action:

CCP 581© A plaintiff may dismiss his or her complaint, or any cause of

action asserted in it, in its entirety, or as to any defendant or

defendants, with or without prejudice prior to the actual

commencement of trial.

So The OP has only to defeat the Account Stated claim. Well color me jealous the court in my case threw out account stated and went with open book and common counts.

So does that mean the OP has to dismiss the motion or can they continue to exclude the open book evidence?

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So The OP has only to defeat the Account Stated claim. Well color me jealous the court in my case threw out account stated and went with open book and common counts.

Yup. That why I was saying that the motion to compel produced good results here. Any time you remove a cause of action, it is a good day.

So does that mean the OP has to dismiss the motion or can they continue to exclude the open book evidence?

Here, there are other common counts that didn't get dismissed so the motion continues. Also, I think it is appropriate for the Court to rule on the motion anyway. Plaintiff has dismissed without prejudice. The Court should rule in the event that plaintiff attempts to reassert the causes of action in the future.

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to opponent. I found this information on self-help and need experts in Cali to chime-in.

California Courts

Service of Process: The law says that when you sue a person, partnership, corporation, or the government, you must give formal notice to the other side that you have started the legal process. In the same way, when you are already involved in a case and file papers with the court, you are required to give the other side notice of the paperwork you have filed. The legal way to give formal notice is to have the other side “served” with a copy of the paperwork that you have filed with the court. This is called “service of process.”

Until the other side has been properly "served," the judge cannot make any permanent orders or judgments.

Then I found this:

CCP 575.2. (a) Local rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a

party if in pro se, fails to comply with any of the requirements

thereof, the court on motion of a party or on its own motion may

strike out all or any part of any pleading of that party, or, dismiss

the action or proceeding or any part thereof, or enter a judgment by

default against that party, or impose other penalties of a lesser

nature as otherwise provided by law, and may order that party or his

or her counsel to pay to the moving party the reasonable expenses in

making the motion, including reasonable attorney fees. No penalty may

be imposed under this section without prior notice to, and an

opportunity to be heard by, the party against whom the penalty is

sought to be imposed.

(B) It is the intent of the Legislature that if a failure to

comply with these rules is the responsibility of counsel and not of

the party, any penalty shall be imposed on counsel and shall not

adversely affect the party's cause of action or defense thereto.

So does this mean Plaintiff's partial request to dismiss w/o prejudice is not valid and relative can bring this up at MTC hearing.

Any help is greatly appreciated.

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to opponent. I found this information on self-help and need experts in Cali to chime-in.

California Courts

Service of Process: The law says that when you sue a person, partnership, corporation, or the government, you must give formal notice to the other side that you have started the legal process. In the same way, when you are already involved in a case and file papers with the court, you are required to give the other side notice of the paperwork you have filed. The legal way to give formal notice is to have the other side “served” with a copy of the paperwork that you have filed with the court. This is called “service of process.”

Until the other side has been properly "served," the judge cannot make any permanent orders or judgments.

Then I found this:

CCP 575.2. (a) Local rules promulgated pursuant to Section 575.1 may provide that if any counsel, a party represented by counsel, or a

party if in pro se, fails to comply with any of the requirements

thereof, the court on motion of a party or on its own motion may

strike out all or any part of any pleading of that party, or, dismiss

the action or proceeding or any part thereof, or enter a judgment by

default against that party, or impose other penalties of a lesser

nature as otherwise provided by law, and may order that party or his

or her counsel to pay to the moving party the reasonable expenses in

making the motion, including reasonable attorney fees. No penalty may

be imposed under this section without prior notice to, and an

opportunity to be heard by, the party against whom the penalty is

sought to be imposed.

(B) It is the intent of the Legislature that if a failure to

comply with these rules is the responsibility of counsel and not of

the party, any penalty shall be imposed on counsel and shall not

adversely affect the party's cause of action or defense thereto.

So does this mean Plaintiff's partial request to dismiss w/o prejudice is not valid and relative can bring this up at MTC hearing.

Any help is greatly appreciated.

I can't imagine any Judge dismissing a case because a request for dismissal was not served on you.

You might say something BRIEFLY at the hearing about not being served with it but it is a distraction from your main arguments.

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I can't imagine any Judge dismissing a case because a request for dismissal was not served on you.

You might say something BRIEFLY at the hearing about not being served with it but it is a distraction from your main arguments.

Ok calawyer won't bring up. Don't want to distract fr MTC.

Edited by helpme
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  • 2 months later...

Just received another Partial Dismissal of Money Lent. 2 down 2 to go. Still have Account Stated and Goods, wares and merchandise sold..

So here's how they responded to m&c on deficient response to relative's document request. Relative requested a signed Chase Contract (RFP 1) and any document establishing a new contract (RFP 2).

JDB's response: The documentation shows EAF is the assignee of an "account stated" claim from the original creditor, Chase Bank USA, N.A. (A true and correct copy of the Bill of Sale and Affidavit of Sale to Plaintiff have been produced). To prevail on such a cause of action, Plaintiff need only show that: (1) at the time of the statement was rendered to the debtor, a valid indebtedness trom one party to the other existed (See: Affidavit) (2) the parties agreed to a balance due, and (3) the debtor expressly or impliedly promised to pay to the creditor the amount stated. The promise to pay account stated may be implied trom circumstances [Mayberry v. Cook (1898) 121 Cal. 588, 590, 54 P. 95; Auzerais v. Naglee (1887) 74 Cal. 60, 65, 15 P. 371]. For example, when an account "is rendered and retained beyond a reasonable time without objection, it is deemed accepted, conceded to be correct, and constitutes an account stated. [Atkinson v. Golden Gate Tile Co. (1913) 21 Cal. App. 168, 17; Perry v. Schwartz (1963) 219 Cal. App. 2d 825, 829; Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal. App. 3d 715, 725]. In this case, Plaintiff contends the rendering of an account stated by Chase Bank USA, N.A. to you as set forth in the account statement and your failure to dispute the account statement within a reasonable time, (See: Terms and Conditions under "Your Billing Rights") is sufficient to establish the account stated cause of action.

Therefore, the original signed contract is not necessary to prove up the account stated claim (RFP #1) as Plaintiff is relying solely upon the rendering of the account statement and your acquiescence thereto by failing to dispute the balance due. Additional1y, the "new contract" referred to is an element of account stated claim: "The effect of an account stated is to establish prima facie the accuracy of the items without further proof and to constitute a new contract (RFP#2) on which an action will lie [see: Peny v. Schwartz (1963) 33 Cal. Rptr. 511; "Account, when assented to, becomes new contract; action is not founded on original items, but on balance agreed to by parties. [Nilsson, Robbin, et al. v. Louisiana Hydrolec (9th Cir. 1988) 854 F.2d 1538, 1543 (applying California law and citing Gleason v. Klamer (1980) 103 Cal. App. 3d 782, 786, 163 Cal. Rptr. 48; "Account stated constitutes new contract which supersedes original contract action is on new contract". Jones v. Wilton (1938) 10 Cal. 2d 493, 498, 75 P.2d 593].

I know since there are now 2 Causes of Actions what my relative requested is still appropriate. In addition, relative just reserved a motion to preclude which is still appropriate to file and send notice, correct?

So does relative proceed with another meet and confer letter?

Edited by helpme
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