WWOW

Possible Common Count Trial on Monday

Recommended Posts

I have a short cause trial set for Monday against FIA Card Services, represented by Hunt & Henriques. Not a JDB. Per the court clerk, I filed a Declaration for Continuation of Trial on 7/20/12 (due to lack of BOP evidence provided). The declaration is still with the court. The complaint is:

Civil Limited less than $25K, Contract: Rule 3.740 Collections

8. Common Counts.

9. Other: Bof A & MBNA merged. Bof A and MBNA established FIA Card Services, N.A> (FIA) a credit card bank and effective 10.19.06 all MBNA & Bof A card accounts are issued and administered by FIA

a. Within last 4 years

1. Open book account

2. account was stated

b. within last 4 years

4. money lent

5. for money paid, laid out

I sent a BOP and CCP 96. On July 21 I received bank statements from June 2010 to June 2011. And a pleading that stated "in compliance with defendan'ts demand for a bill of particulars, plaintiff responds by attaching presently available statements on the account on which the complaint in this action is based. Additional statements, if and when located will be sent in a Supplemental Bill of Particulars. Plaintiff reserves the right to amend this bop at such time as any other statements showing transactions are located"...

I also received an objection to my CCP 96 as it was 3-days late. Court date if not continued is July 30.

Obviously, they have not provided the documents requested in the BOP. Other than responding to the BOP and and CCP, I have had no other written correspondence with them.

After reading numerous posts on Common Counts, it seems that these collection accounts usually have two counts, including Breach of Contract...this complaint just has Common Counts.

Would my defense be lack of supporting evidence based on the plaintiff's incomplete BOP? Would you recommend settling prior to the trial, or take my chances? Also, I read somewhere that I was suppose to send any legal filings to the plaintiff, but I only sent it to the attorney of record?

Thanks for any help!

Share this post


Link to post
Share on other sites

373. Common Count: Account Stated

[Name of plaintiff] claims that [name of defendant] owes [him/ her/it] money on an account stated. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] owed [name of plaintiff] money from previous financial transactions;

2. That [name of plaintiff] and [name of defendant], by words or conduct, agreed that the amount stated in the account was the correct amount owed to [name of plaintiff];

3. That [name of defendant], by words or conduct, promised to pay the stated amount to [name of plaintiff];

4. That [name of defendant] has not paid [name of plaintiff] [any/all] of the amount owed under this account; and

5. The amount of money [name of defendant] owes [name of plaintiff].

Sources and Authority

"The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due." (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)

"The agreement of the parties necessary to establish an account stated need not be express and frequently is implied from the circumstances. In the usual situation, it comes about by the creditor rendering a statement of the account to the debtor. If the debtor fails to object to the statement within a reasonable time, the law implies his agreement that the account is correct as rendered." (Zinn, supra, 271 Cal.App.2d at p. 600, internal citations omitted.)

"An account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another. When the account is assented to, ' "it becomes a new contract. An action on it is founded upon the original items, but upon the balance agreed to by the parties. . . ." Inquiry may not be had into those matters at all. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.' " (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787 [163 Cal.Rptr. 483], internal citations omitted.)

"To be an account stated, 'it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.' The agreement necessary to establish an account stated need not be express and is frequently implied from the circumstances. When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered. Actions on accounts stated frequently arise from a series of transactions which also constitute an open book account. However, an account stated may be found in a variety of commercial situations. The acknowledgement of a debt consisting of a single item may form the basis of a stated account. The key element in every context is agreement on the final balance due." (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752-753 [241 Cal.Rptr. 883], internal citations omitted.)

"An account stated need not be submitted by the creditor to the debtor. A statement expressing the debtor's assent and acknowledging the agreed amount of the debt to the creditor equally establishes an account stated." (Truestone, Inc. v. Simi West Industrial Park II (1984) 163 Cal.App.3d 715, 726 [209 Cal.Rptr. 757], internal citations omitted.)

" 'The common count is a general pleading which seeks recovery of money without specifying the nature of the claim . . . . Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.' However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff." (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)

"The account stated may be attacked only by proof of 'fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.' The defendant 'will not be heard to answer when action is brought upon the account stated that the claim or demand was unjust, or invalid.' " (Gleason, supra, 103 Cal.App.3d at p. 787, internal citations omitted.)

"An account stated need not cover all the dealings or claims between the parties. There may be a partial settlement and account stated as to some of the transactions." (Gleason, supra, 103 Cal.App.3d at p. 790, internal citation omitted.)

"In the common law action of general assumpsit, it is customary to plead an indebtedness using 'common counts.' In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are '(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.' " (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)

"A common count is not a specific cause of action, . . . rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable." (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, 515

1 Witkin, Summary of California Law (9th ed. 1987) Contracts, 917, 918

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts,

Edited by racecar

Share this post


Link to post
Share on other sites

Thanks racecar....it looks like I don't have a case as they have provided statements "previous transactions between the parties establishing the relationship of debtor and creditor" and since I do not have a basis for "attacked only by proof of 'fraud, duress, mistake, or other grounds cognizable in equity for the avoidance of an instrument.'

I guess I will hope for a continuance to have more time to negoatiate a settlement.

Share this post


Link to post
Share on other sites

The response you received is insufficient. Plaintiff is required by statute to provide the information within 10 days. In essence, this statutory procedure is a substitute for setting forth the complete accounting in the complaint. Therefore the plaintiff should have it at the ready and give it to you upon demand. There is nothing burdensome and oppressive about a procedure required by law. Plaintiff’s statement that is “reserves the right to produce documents later is the opposite of what the code requires. CCP 454 says that plaintiff must respond to the BOP “or be precluded from giving evidence thereof.”

The likely problem is that plaintiff doesn’t have the information. So, you need to get a court order requiring the plaintiff to give it to you. First, you must meet and confer. That just means you need to send plaintiff a letter. The letter should say California Code of Civil Procedure section 454 requires you to respond in 10 days. You did not do so. If I do not have a proper response by _____ [insert date 10 days from now], I will file a motion asking the Court to preclude plaintiff from giving any such evidence at trial.

Your motion to the Court can be very simple. You should probably ask that plaintiff be required to provide a further BOP or, in the alternative, be precluded from using any such evidence at trial. If you need help with the motion, post again. Several people on this board have filed them and may be able to email you an example.

http://www.creditinfocenter.com/forums/search.php?searchid=4377940read thru his posts he is attorney in ca.

http://www.creditinfocenter.com/forums/there-lawyer-house/315079-how-i-got-citibank-dismiss-their-complaint-fu-vikram-pandit.html

If a defective response to a demand for bill of particulars is received, defendant should first send a letter to plaintiff requesting a more detailed response. If no further response is received then a motion can be filed.

Edited by racecar

Share this post


Link to post
Share on other sites

You should also remember that a contract can not be abandoned in order to seek a more favorable judgment than the contract would offer.

A plaintiffs right arises on a contract and is measured thereby; the question whether a plaintiff can use the common counts plea where a plaintiff seeks to exclude a failure to perform a precedent condition is to be solved by questions of practical convenience and in view of the fact that the plaintiffs rights are quasi contractual, and not based on the contract at all.

So in order to use the common counts plea the contract has to be abandoned, and there is plenty of case law that states that a contract can not be abandoned in order to seek a more favorable judgement.

If the plaintiff is suing for contract for the payment of money, and a breech of that contract has taken place, the contract can not be abandoned to seek judgment under common counts because the contract itself will dictate the contractual agreement.

Share this post


Link to post
Share on other sites

legaleagle: The damages in complaint are $9655.37

This is a short cause trial....there are no CMC's, no trial brief, nothing....you walk into the courtroom and present any documents to the judge which are not already in their file....the plaintiffs replied to the BOP in 10 days + 10 days for mailing...I recevied them on the 22nd and the trial date is set for the 30th...I did not have time for a motion. Therefore, I tried for a continuance...below is what was presented to the court in a declaration (acceptable by the judge)...and thanks to all the posts to compile the verbage..

TO THE HONOROBLE JUDGES OF SAID COURT:

I XXXXXXXX, the defendant, request a continuance in the above said matter which is currently scheduled as a CV Court Trial - Short Cause on July 30th, 2012 at 9:00 a.m. in Department 105, to allow defendant sufficient time to prepare for trial.

Defendant served a request for Bill of Particulars on July 3, 2012. Defendant asked for a Bill of Particulars setting forth the items and details of the account on which the cause of action for Money Lent and Paid, of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, all payments or credits that have been made to the account and any agreement assigning the account at issue to the plaintiff. Plaintiff’s response on July 19, 2012 was wholly deficient.

“Plaintiff responds by attaching presently available billing statements on the account on which the complaint in this action is based. Additional statements, if and when located, will be sent in a Supplemental Bill of Particulars. Plaintiff reserves the right to amend this bill of particulars at such time as any other statements showing transactions are located”.

Plaintiff provided an incomplete smattering of statements, from July 2010 to July 2011. Plaintiff’s response also did not provide a signed agreement assigning the account at issue to the plaintiff, complete itemized details of the account on which the cause of action for goods sold and delivered including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered; and the price or charge made for each such item or transaction and all payments or credits that have been made to the account.

The information requested in Defendant’s Bill of Particulars is the bare minimum that Plaintiff will need to prove its case at trial. Plaintiff should have had this information in its possession before filing suit. There is simply no reason that it should not be produced in response to a properly served Request for Bill of Particulars.

The defendant requests a continuance in order for the plaintiff to complete their discovery as set forth in defendant’s Request for Bill of Particulars and to obtain and review that documentation in order to prepare for trial.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

To date, the continuance declaration is still with the Judge and the plaintiff's have not objected to the continuance...

I am not sure I understand the statement "a contract can not be abandoned in order to seek a more favorable judgment than the contract would offer"....what is considered more "favorable"?

Thanks so much!

Share this post


Link to post
Share on other sites

If trial is not continued, it will be Monday, July 30th....isnt' it too late to aske for arbitration? or do I ask at trial?

Share this post


Link to post
Share on other sites

Well, I received my order approving a continuance for another 3 weeks today....and sent out a letter to plaintiff's for completion of the BOP I sent them.....got home and I had overnight package from attorney's for plaintiff's with a Request for Dismissal.....since it was without prejudice, they will be back, but I will be one step smarter in defending my case.

Thanks everyone for all your help!!!!!

Share this post


Link to post
Share on other sites

GOOD JOB!

You make it look so easy. I wish the OC on my case would do the same.

Share this post


Link to post
Share on other sites

Congrats!! That is another win for the pro se's vs OC represented by H&H.

So far I have noticed H&H caves if you continue to push them towards trial. They aren't trial lawyers. They are just people who passed a bar exam and file complaints and wait for procedural errors. Most people don't file answers to the complaint or respond to discovery. Afterwards they just file for summary judgment.

Share this post


Link to post
Share on other sites

WWOW you and beergoggles and coltsfan,linda7 are going to put midland out of business,what will we have to do then????

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.