Mb4884

Sued By JDB, Cavalry/Winn in California - What Do I Do Next?

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I have been sued by Cavalry SPV I. LLC, an assignee of Wells Fargo Bank represented by Winn Law Group on 05/11/2012 for $17K. The complaint included a copy of a redacted signed credit application.

I filed a General Denial on 06/12/2012 with affirmative defenses.

On July 31 I was served with Discovery documents, Request for Admissions, Form Interrogatory and Special Interrogatory. The Request of Admissions included an exhibit that had a some printout statements and another copy of signed credit application agreement.

After spending 3 weeks reading and studying TONS of threads in this website, I was able to complete the responses and I sent them off to Winn yesterday Aug, 29.

There is a Case Management Conference scheduled for 11/14/2012.

I saw many threads sending discovery documents to the plaintiff and others filing Burden of Proof (which I think I am too late for). Also, I see that I need to complete a Case Management Conference Statement.

My question is what do I do next? Can I still serve discovery documents on Winn? Will this help my case or should I skip it? Are there any other documents or filings that I should be aware of before the CMC? How and When do I fill out a CMC statement?

Thank you all for your assistance in Advance!! This forum has been GREAT help!

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I got a letter from Winn Law group stating they did not receive my responses as of September 5th. They claim I have until Sept 17 to send my response WITHOUT OBJECTION as I waived that right by not responding in time. They also claim they can make monetary action against me.

I wrote them back rejecting all their claims and indicated that I mailed this on Aug 29th showing my certified mail receipt and a print out of USPS.com track and confirm showing the documents were delivered on Sept 4th. I also attached copies of all the responses. I sent this letter and attachments by FAX, EMAIL, Certified mail.

How is it that they sent me this letter on September 5th when I had until September 8th to respond? They mailed me the discovery demands on July 31st but I didn’t get them until in the mail until Aug 4th. Isn’t that when the date of service is? The date that I received their discovery requests by mail?

Also, if they started counting as of the July 31st, they served me by mail so I have 35 days to respond which would make it the Sept 5th and my certified mail tracking via USPS shows the delivered date of the Sept 4th.

Is there anything I should be worried about or anything I should do? I feel like they are playing games!

Edited by Mb4884
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I feel like they are playing games!

That's because they most likely are. I had similar crap pulled on me when I sent the other side discovery requests. "Oh, our responses to your doc requests and admissions are ready, but we need more time for the interrogatories - give us an extension that puts the time to respond after you'll need the responses." Then, "Oh, we need an extension for the doc requests." Then, "Oh, we need a continuance." This is SOP for collection attorneys, whether it be intentional or simply because they have more cases than they can properly litigate.

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You are dealing with lawyers who have the proud distinction of graduating at the bottom of their class, then the additional distinction of being hired by JDB firms because they are not fit for any other position in the practice of law. They aren't playing games, they just don't know what they're doing. Wait until you face one in court, you'll have a whole different opinion of them. A few days on discovery is nothing, they won't file any motions, they are bluffing. Nice of them to waive your rights under the rules of procedure, I'd check that out with CALawyer or Seadragon. I don't think this is right.

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They sent me that type of letter, claiming I didn't respond to their admissions request, and stating they would file a motion to deem the admissions admitted. I wrote them back just like you did, and never heard about that issue again.

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Also, I was dealing with an OC. Believe it or not, they had granted me a 3-week extension to respond to their discovery, and so they must have been looking forward to my responses and couldn't wait to pounce on me for what they thought was a late response.

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I got a letter from Winn Law group stating they did not receive my responses as of September 5th.

-snip-

showing my certified mail receipt and a print out of USPS.com track and confirm showing the documents were delivered on Sept 4th.

-snip-

Is there anything I should be worried about or anything I should do? I feel like they are playing games!

I think you have covered yourself nicely, and you have nothing to worry about. If they were to have the nerve to push this in front of a judge, your proof of delivery on Sept.4 shows that their claim not to have received it by Sept. 5 is baloney, all the other counting of days doesn't matter.

It is your right to request Discovery, and I don't think it's too late. You have the right to see the evidence they will use in court. Here's what my attorney used for Request for Production of Documents to Winn:

- All writings, as defined by Evidence Code Section 250, which evidences, refers or relates to the account stated as alleged in the Complaint for Common Counts on file herein.

- All writings , as defined by Evidence Code Section 250, which evidences, refers or relates to the agreement which is the subject of this lawsuit as alleged in the Complaint for Common Counts on file herein.

- All writings , as defined by Evidence Code Section 250, which evidences, refers or relates to any assignment of the agreement which is the subject of this lawsuit as alleged in the Complaint for Common Counts on file herein.

- All writings , as defined by Evidence Code Section 250, which evidences, refers or relates to any sale of the agreement which is the subject of this lawsuit as alleged in the Complaint for Common Counts on file herein.

Your Case Management Statement, Form CM-110, must be filed and a copy mailed to plaintiff's attorney no later than 15 days before the CMC is scheduled. Ooh, came across a nifty how-to page:

Case Management Statement

Good luck,

DH

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My friend is also being sued by AMEX thorugh Michael & Associates in Thousand Oaks. They sent a letter claiming they served my friend with request for admissions and form interrogatories and the time to respond has expired. It also said that if they do not receive these responses without objections on or before Oct 15 (3 days) they will make a motion to deem requests admitted and seek monetary sanctions.

My friend NEVER received these requests or any other discovery paperwork. Can anyone tell me what is the best thing to do? Should he call them. How can he prove he never received the discovery requests?

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I think you have covered yourself nicely, and you have nothing to worry about. If they were to have the nerve to push this in front of a judge, your proof of delivery on Sept.4 shows that their claim not to have received it by Sept. 5 is baloney, all the other counting of days doesn't matter.

It is your right to request Discovery, and I don't think it's too late. You have the right to see the evidence they will use in court. Here's what my attorney used for Request for Production of Documents to Winn:

- All writings, as defined by Evidence Code Section 250, which evidences, refers or relates to the account stated as alleged in the Complaint for Common Counts on file herein.

- All writings , as defined by Evidence Code Section 250, which evidences, refers or relates to the agreement which is the subject of this lawsuit as alleged in the Complaint for Common Counts on file herein.

- All writings , as defined by Evidence Code Section 250, which evidences, refers or relates to any assignment of the agreement which is the subject of this lawsuit as alleged in the Complaint for Common Counts on file herein.

- All writings , as defined by Evidence Code Section 250, which evidences, refers or relates to any sale of the agreement which is the subject of this lawsuit as alleged in the Complaint for Common Counts on file herein.

Your Case Management Statement, Form CM-110, must be filed and a copy mailed to plaintiff's attorney no later than 15 days before the CMC is scheduled. ]

Good luck,

DH

DH,

How do I fill out the Request for production of documents as you stated? also, is it too late for me to request a Bill of Particulars or serve discovery on the plaintiff (Winn Law Group – Calvary LLC)? I just received the CM Statement from the Plaintiff and the case management conference is in 20 days (Nov 14). In the Case management statement they claim we are within in the statue of limitations but my last payment to the CC company was over 4 years ago (Jan 2009). They filed the lawsuit in May 2012.

I know I should have done this earlier but I somehow missed your advice and did not requested or served any discovery on my end and not sure what direction to go. Please help if you can! Thank you so much.

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You put your RFP on pleading paper and send it to the plaintiff CMRRR.

Just an observation, 1stStep recommended you send a BOP on 8-30, and DH recommended you send your RFP on 9-17, and today you ask again if it is too late to send discovery demands. It is not to late but you need to get moving or at your CMC the judge will set a trial date and you will be stuck.

BELIEVE ME, I know how you feel. Most on here have been where you are now but if you don't aggressively fight back, you are going to loose. I realize the thought process of "I don't want to make them mad, maybe they'll be nicer to me if I'm not aggressive." I am here to tell you that that way of thinking will get you trounced. Our legal system, like it or not, is an adversarial system and you need to look at the other side as someone who needs to be annihilated. You see, that is the way they are looking at you and they will exploit every miss-step you might take. There is a lot of great help here, take advantage of it, but you will need to do the work yourself.

Please fight back and good luck,

rt

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Thanks RT.

This entire process has been very difficult because I am worried about doing things wrong and becoming stuck. I keep going in circles which is why I keep delaying sending anything then When I get a notice or response from WINN, I panic again!

I will send the production for documents today or tomorrow. As for the Case management statement, do I say that discovery is not finished yet?

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Yes, just say in your CMS that discovery is on-going and you should be fine. Don't let them bully you.

There are A LOT of people on here that have beat these guys. You need to read a lot. Read all the "I beat so in so" threads to build your confidence. You can beat this too, just need to read a bunch and get aggressive.

Good luck,

rt

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DH,

How do I fill out the Request for production of documents as you stated? also, is it too late for me to request a Bill of Particulars or serve discovery on the plaintiff (Winn Law Group – Calvary LLC)?

Rivertime has already answered these questions, but since you addressed your question to me, I didn't want you to think I was ignoring you.

If you don't know what pleading paper format is, you can probably Google it. Some of the paperwork you've received from the plaintiff is probably in this format, and you can use that as an example. Also, Microsoft Word has a template for this format, so creating your document is very easy. Another good resource is the book Win Your Lawsuit by Judge Roderic Duncan from Nolo Press. In addition to presenting information in one place in a logical sequence, there are sample documents in it. You can find it at libraries, bookstores, or online.

Regarding a BOP, calawyer has posted an example. If you do a search you should be able to find it.

I do have piece of bad news, however: for a last payment of Jan. 2009, the 4 year statute of limiations would run until Jan. 2013, so it would appear they filed with 8 months to spare.

Good luck,

DH

Edited by debtorshusband
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Thanks DH. And thanks again RT.

I finished the BOP, Request for Production of Documents, and the CM Statement and will be mailing it in about an hour. I will also file with courts tomorrow.

As for the dates, I made a typo. The last payment I personally ever made was January 2008, not 2009. To complicate matters even further There was an issue that Wells Fargo took 1 or 2 payments out of my bank account without my consent. I am not sure of the exact date or dates however but from what I remember it was mid or late 2008 and perhaps early 2009 but I think it was both in 2008. The account didn't have much money and was closed. This was when my business collapsed and I haven't been able to dig out the statements or documentations from the mountains of papers I have during this bad time.

Screenname, This issue is San Joaquin County. My Friend is being sued in Santa Clara county and by Michael & Associates for an AMEX bill and he says the process has been the same exact for which he is following everything I am trying to do.

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We attended the CMC yesterday and there was a representative from Calvary who requested that trial date be set out 6months. The judge explained to us that we are representing ourselves and should try to work it out therefore she is setting the trial out 9 months in August. That was it!

What happens now?

I sent the BOP and they said stated general objections including stating attorney client privilege and they answered as follows: Plaintiff is only required to produce an itemization of the account alleged within the pleadings indicating what accounts are subject of the lawsuit. Plaintiff has been contacted by its attorneys of record, WINN, and hereby complies with BOP: A diligent sear and reasonable inquiry has been made in attempt to locate the requested documents. Plaintiff is continuing to search its records for documents that are responsive to this demand. Plaintiff will comply with this request and will produce all non-privileged responsive documents in its possession. Attached are true copies of agreement and personal guarantee and billing statements dated 8/4/2008, 12/3/2008, 1/5/2009, and 1/6/2009. "

I didn't realize this but my last online payment was 7/23/2008 according to the statement. Otherwise all the other statement shows late fee and interest fee. I thought my last payment was in January 2008. The lawsuit was filed on 5/11 so I assume the SOL doesn't apply. They did take additional money out of my wells checking account but this doesn't appear on the statement.

I am still waiting for the Request for Production documents to come back.

What do I do next? How do I prepare for trial? Can I send them more requests and discovery such as request for admission or interrogatories?

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If they are asserting privilege, you need to send a meet and confer to ask for a privilege log.

MAny of the attorneys attempt to hide behind privilege since they often do not have the documents, so call their bluff.

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