Beginning defense advice

[nodebtnow]

Been researching as much as I can and continue to do so.

I'm in process of preparing my answer to a court summons due 9/15.

the venue is Ventura county. The summons is laid out very oddly compared to what I have been reading so to answer in the affirm or deny format and how to reference those is a bit confusing.

Read the info on Ventura county court website, not much clarification there.

The summons is thin in that it has no supporting documents, does not even list any address for me in the summons.

this is a summery of the summons.

A non complex case under rule 3.740 collections

(I'm guessing this is the law they are citing?)

monetary remedies are sought

pg1

summons cover, filing date, name and address of court,

served as an "individual defendant"

pg2

name and address of representing attorney for plaintiffs

name of court, Ventura

Plantiffs NAME Equable ascent financial

defendant, me

CONTRACT = COMPLAINT

JURISDICTION= action is a limited liability case exceeding 10k but less than 25k

PLAINTIFF EAF LLC allegeds causes of action against defendant (me)

pg3

true names of defendants sued as Does are unknown to plaintiff 1-10

this is the proper court because = a defendant lives hear now. No address for me was included in the summons. it was served at my work in that county, I do live in that county.

causes of action are attached = Common Counts

Plaintiff prays for judgement

a. $11000

b. interest on damages /according to proof

c. attorneys fees / according to proof

d. plus further relief as court deems proper

pg4 (attachment to complaint)

1st CAUSE OF ACTION

CC-1 PLAINTIFF alleges I became indebted to (other box checked) account transferred assigned and or sold to plaintiff.

a. within the last four years (2) because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.

(3)for goods, wares, merchandise sold and delivered for which defendant promised to pay in the sum of $11000

(4)for money lent by plaintiff to defendant at defendants request.

CC-2 $11000 which is the reasonable value due and payable despite plaintiffs demands (according to proof) They offered none

CC-3 plaintiff is entitled to fees (according to proof)

There was also a "mandatory early settlement conference" form that is voluntary???? I'm calling the court on this

to answer the other preliminary questions

4. Who is the original creditor? (if not the Plaintiff) CHASE, but they are not named in the summons

5. How do you know you are being sued? SUMMONS, YES

6. How were you served? IN PERSON

7. Was the service legal as required by your state? APPEARS TO BE SO ACCORDING TO CALI RULES

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

ONE CALL BY THEM (CIR), I engaged them in a desire to settle but was treated very rudely with no meaningful discussion.

9. What state and county do you live in? CA, VENTURA

10. When is the last time you paid on this account? THREE YEARS AGO, 4 IS THE LIMIT IN CA, HAVE TO PULL CREDIT TO FIND OUT EXACTLY

12. What is the status of your case? ONLY SERVED SUMMONS, PREPARING ANSWER NOW

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? NO

15. How long do you have to respond to the suit? 14 MORE DAYS

Did you receive an interrogatory (questionnaire) regarding the lawsuit? NO

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. NOTHING, NADA, ZIP

I will be drafting my answer and posting with my affirmative defenses very soon for comment.

Question: Since I will be denying certain allegations they are making as hearsay, should I make demands for their "proof" that they assert they have now with the answer, or send for that separately. Such as original contract/agreement with Chase, all card transactions etc? Assignment of debt paperwork from Chase to Equable? DOn't have the scratch to pay a lawyer, so I'm doing this myself. Glad to see there is a forum for folks like us THAT SUCCESSFULLY DEFEND THEMSELVES!!.

Yeah!

j

Edited September 3, 2012 by nodebtnow
hit send button before done

[racecar]

'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.)

"Although such an action is one at law, it is governed by principles of equity. It may be brought 'wherever one person has received money which belongs to another, and which "in equity and good conscience," or in other words, in justice and right, should be returned. . . . The plaintiff's right to recover is governed by principles of equity, although the action is one at law.' " (Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)

'The action for money had and received is based upon an implied promise which the law creates to restore money which the defendant in equity and good conscience should not retain. The law implies the promise from the receipt of the money to prevent unjust enrichment. The measure of the liability is the amount received.' Recovery is denied in such cases unless the defendant himself has actually received the money." (Rotea v. Izuel (1939) 14 Cal.2d 605, 611 [95 P.2d 927], internal citations omitted.)

"ince the basic premise for pleading a common count . . . is that the person is thereby 'waiving the tort and suing in assumpsit,' any tort damages are out. Likewise excluded are damages for a breach of an express contract. The relief is something in the nature of a constructive trust and . . . 'one cannot be held to be a constructive trustee of something he had not acquired.' One must have acquired some money which in equity and good conscience belongs to the plaintiff or the defendant must be under a contract obligation with nothing remaining to be performed except the payment of a sum certain in money." (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14-15 [101 Cal.Rptr. 499], internal citations omitted.)

" 'This kind of action to recover back money which ought not in justice to be kept is very beneficial, and, therefore, much encouraged. It lies for money paid by mistake, or upon a consideration which happens to fail, or extortion, or oppression, or an undue advantage of the plaintiff's situation contrary to the laws made for the protection of persons under those circumstances.' " (Minor v. Baldridge (1898) 123 Cal. 187, 191 [55 P. 783], internal citation omitted.)

" 'As Witkin states in his text, "[a] common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract." ' A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract." (Utility Audit Co. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 [5 Cal.Rptr.3d 520], internal citations 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 ommon count are '(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.' A cause of action for money had and received is stated if it is alleged the defendant 'is indebted to the plaintiff in a certain sum "for money had and received by the defendant for the use of the plaintiff." ' " (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.)

"A cause of action is stated for money had and received if the defendant is indebted to the plaintiff in a certain sum 'for money had and received by the defendant for the use of the plaintiff.' The cause of action is available where, as here, the plaintiff has paid money to the defendant pursuant to a contract which is void for illegality." (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1623 [33 Cal.Rptr.2d 276], internal citations omitted.)

" 'It is well established in our practice that an action for money had and received will lie to recover money paid by mistake, under duress, oppression or where an undue advantage was taken of plaintiffs' situation whereby money was exacted to which the defendant had no legal right.' " (J.C. Peacock, Inc. v. Hasko (1961) 196 Cal.App.2d 353, 361 [16 Cal.Rptr. 518], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure 4th (1997) Pleading,522

12 California Forms of Pleading and Practice, Ch. 121, Common Counts, 121.24[1], 121.51 (Matthew Bender)

4 California Points and Authorities, Ch. 43, Common Counts and Bills of Particulars (Matthew Bender)

Edited September 3, 2012 by racecar

[racecar]

http://www.courts.ca.gov/documents/pld050.pdf

Responding to a Lawsuit

Discovery & Privilege Law case outlines, E-Discovery, Practice Tips

California Law & Government Resources – WashLaw Web

CITES BY TOPIC: demurrer

Demurrer to complaint in California « California Freelance Paralegal

It can be just a simple sentence "This Defendant denies each and every allegation in plaintiffs complaint"

You can use the General Denial form so long as the complaint is not "verified". A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

GENERAL DENIAL

This Defendant denies each and every, all and singular, generally and specifically, the allegations contained in the claim, and each and every part thereof and, in this connection, this Defendant denies that plaintiffs have been injured or damaged in any sum, or otherwise, or at all.

Edited September 3, 2012 by racecar

[nodebtnow]

WOW! thanks racecar. I'll chew on that and get back tomorrow.

I edited my post as I hit the send button prematurely.

j

[calawyer]

WOW! thanks racecar. I'll chew on that and get back tomorrow.

I edited my post as I hit the send button prematurely.

j

Or you can also fill out this simple form if the complaint is not verified. If you have any question whether your complaint is verified (most are not), I posted a link yesterday to a verified complaint you can check.

http://www.courts.ca.gov/documents/pld050.pdf

[nodebtnow]

awake this morning and was able to digest the great resource material you posted RACECAR.

This summons does seam to fall in the general category of a "common count" and is a general pleading which seeks recovery of money without specifying the nature of the claim? Except, I'm not sure given the limited info and checked boxes that there is a claim made or not, just that monies are due plaintiff for goods, wares and merchandise? The best I can tell is that under the "check one box that best describes this case" Rule 3.740 collections was checked.

Even so the basic thrust of the plea seams to be (judge, we say he owes us $11k, make him pay based on the proof we have not shown)

There is a defendant named, happens to be very similar to my name though no SS number, or original contract or account number is attached. So how do I know they have the right person, a valid argument I guess.

I looked over the whole document and found no language relating to the document being "verified". No page of declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

It was signed by a lawyer from their firm but not for the purposes of "verification" as you cited.

I guess I can call the court to find out if this is a verified complaint or not for sure?

Thanks for the links, the General Denial claim form can only be used for amounts under $1000, so the general denial is out.

So I must draft a complete response which includes all or part of

General Defenses

Affirmative Defenses

Counterclaims

Request of discovery

Should request for "the proof " they claim be demanded as part of my discovery now in the answer, or separately?

then there is the demurrer thing that I'm not fully understanding yet

What would the expected response be by them after receiving this? I'm sure they won't roll over that easy for $11k

thanks for your insight. Looking forward to seeing this through and any more advice. The clock is ticking.

j

[calawyer]

the General Denial claim form can only be used for amounts under $1000, so the general denial is out.

j

You MUST use the general denial form if the amount is $1,000 or less.

You MAY use the form if the complaint is not verified.

As far as the "lack of evidence" is concerned, the following might be helpful to put this in perspective.

A complaint makes allegations of fact. If does not need to be supported by evidence.

Plaintiff must produce evidence in response to a proper discovery request.

PLaintiff must produce evidence in opposition to a summary judgment motion. The evidence must be admissible (however for summary judgment, declarations are admissible to the extent they are properly crafted).

PLaintiff must produce evidence at trial. And it must be admissible evidence. Declarations are not admissible at trial unless some exception applies (for example, compiance qwith CCP 98). Moreover, at trial, plaintiff has the burden of proving each element of any claim it pursues.

A demurrer challenges the complaint as being legally insufficient. It rarely makes sense to file a demurrer unless you believe plaintiff CAN'T properly allege a cause of action (for example, if the statute of limitations has expired).

Good luck.

Edited September 3, 2012 by calawyer

[nodebtnow]

yes, thank you. I stopped reading after the $1000 limit for general denials. It did say for unverified claims once I read a few sentences further.

This makes it much simpler.

Q. Does anyone know what to expect from the JDB once the General Denial is sent the plaintiff and the court??

Thanks so much for chiming in CALAWYER

So I guess I just fill out the General Denial Form, send it out registered mail and follow the case number online with the court and wait for a response from somewhere/someone to ascertain what the next step will be?

Also, when does the SOL timer start counting legally? Does this summons and other legal action pause the clock? Does it zero out and start afresh when the paper is sold to another JDB? Curious.

j

Edited September 4, 2012 by nodebtnow
question

[unemployednomore]

Also, when does the SOL timer start counting legally? Does this summons and other legal action pause the clock? Does it zero out and start afresh when the paper is sold to another JDB? Curious.

Yes, a lawsuit pauses the SoL. As long as no payments are made in the interim between when they sue you and when they drop it (payment activity restarts the clock from zero), the next JDB will be working with the same date as the original JDB. Assuming the lawsuit is dropped and sold off again that is.

You'll probably get some discovery questions first from the JDB once you make your response and they realize they're not getting a default judgment.

[ReadytoWininCA]

Hi, just wanted to welcome you & let you know that I am also dealing with a JDB in California too and have been given some AWESOME advice & help with which words to write in response to my lawsuit.

Thought it might help you to read my post & also while you're doing that check out the links that others have provided me in my post - there is a TON of great information on this site. Just make sure that whatever you do applies to California and whenever you have questions, just ask them here, you will be provided EXCELLENT information.

Also, you send the answer to the Plaintiff's attorneys, with proof of service (send everything Certified Mail with Return Receipt at the post office) & then you file the answer with the court within 30 days - make sure you make a copy for the court and 1 additional copy for yourself & have the court stamp the copy you're keeping. After you file your answer you'll be in the Discovery phase - Bill of Particulars would be something you should do next to find out what it is they think they have that makes them think you owe them anything at all.

Since you're being sued by a Junk Debt Buyer (JDB) and not Chase, you can just replace the ones you read about in this forum like Asset Acceptance, Midland Funding, LVNV, etc and replace it with your Plaintiffs name.

Take your time to educate yourself over the next week, you have 30 days, so learn as much as you can. Strategy starts before you send anything to them, and the words you choose now will be important over the life of your lawsuit.

Especially important when choosing any affirmative defenses for you case - you should be able to defend the ones you choose. I chose 3 and they would work for you too!

Last advice, figure out exactly what you are being sued for, which common counts, plus money lent etc. Then do a Google search on each count and make a document that tells you what the Plaintiff must prove for each - tailor your strategy to attack those elements - as calawyer says they must prove every element and not proving just ONE means YOU win! Which of course is the point of this whole exercise!

Good luck to you!

This is my thread:

http://www.creditinfocenter.com/forums/there-lawyer-house/315816-ca-asset-acceptance-open-acct-acct-stated-s-about-discovery.html

These links in my thread have been incredibly helpful (shared by AWESOME members of this forum):

http://www.creditinfocenter.com/forums/there-lawyer-house/307271-help-answering-discovery-stay-home-mom-sued-cach-llc-california.html

EXCELLENT ARTICLE from helpme

LexisNexis: Defense of Assigned Consumer Debts: http://www.courts.ca.gov/partners/do...RL5eRooney.pdf

[nodebtnow]

thank you for the kind reply READYTOWIN. I'll read up on the posts you gave for sure. In deed there is a ton of info here, sorting out how and exactly when and where to apply it in what order is the daunting part!

And to UNEMPLOYEDNOMORE for the SOL answer.

Just read through your whole post READYTOWIN, Wow! very informative, thank you for sharing your process, looking forward to your success. So glad I found this site. Spoke to a few lawyers, they didn't seam to have much motivation even if they were paid the 5k retainer. Now I'm DIY.

Edited September 5, 2012 by nodebtnow

[ReadytoWininCA]

Hi nodebtnow,

No worries about finding an attorney! Bottom-line is you found the right website if you want to fight this - and frankly, at this point you are your best attorney, we really have nothing to lose by fighting the lawsuit, you could always settle at a much later date for less than 5k, so dig in!

If you have access to your local library, go there and get a book about this process. Two books that will give you a general overview for the actual process is "Represent yourself in court: How to prepare & Try a Winning Case" or "Win your lawsuit : a judge's guide to representing yourself in California Superior Court" - they won't really help you with the specific things you need to write to defend this particular lawsuit, but they both give excellent overviews of what to expect, what in general is needed etc.

By the way, I think our lawsuit amounts are about the same & it cost me $370 to file an answer, so keep that in mind, and then its about $6 or so every time you need to send something to them CMRR (Certified Mail & Return Receipt) but assuming we win (WHICH I'M ASSUMING!) then we can ask for those costs to be reimbursed once they dismiss our cases.

And right now all you need to be focusing on is what you are going to say in your ANSWER. Don't worry about the format, it looks just like the actual summons you received, I'd be happy to put a template here for to use - you can do what I did and make it all pretty in Word or you can fill out a general denial form (available on the court website) - either way you'll be denying what they are alleging.

The second most important thing is deciding on your affirmative defenses and if you feel like counterclaiming anything you also do that (I didn't counterclaim anything). Then you have that doc ready to go.

The MOST important thing is that you file that doc with the court within 30 days of that knock on the door - and of course you send the same to the attorneys with a proof of service (you can't just send them the envelope, you hand the envelope to a friend who "serves" the document by mailing it for you).

And 9/15 is a Saturday, so you should be planning on giving it over to the courthouse Thursday or Friday right?

Ask anything you want in your thread, it will get bumped up to the top of the list in the forum & wonderful experienced (way more experienced than me) will help you answer your questions!

Also if you aren't completely burned out, I would really suggest as great reading:

http://www.creditinfocenter.com/forums/there-lawyer-house/307271-help-answering-discovery-stay-home-mom-sued-cach-llc-california.html

This lady is here with us in CA and won her lawsuit - its just a great thread for so many reasons!

[nodebtnow]

thanks so much for sharing your experience READYTOWIN, it is comforting to know of your current march to success. a FRESH CASE STUDY AS IT WERE. I'm working on my answer and affirmative defenses this weekend and will post for comment. YES I WILL NEED TO MAIL IT BY MID WEEK

Q. on the BOP. Is that sent separately on the heals of the answer? And is that also two copies, one to the court and one to the JDB? I haven't found a clear answer but what I can gather it wants to be very quickly to put them on the defensive?

[nodebtnow]

Thanks for the heads up on the Demurrer CALAWYER

Been looking at the DEMURRER a little closer and it got me thinking.

Given that I was served an unverified complaint and that it is going to be generally denied on every count for mostly vague and unsubstantiated claims by the plaintiff, would it not be prudent to then follow up with a Demurrer with the court next? I'll explain.

The reason I ask is the language I read here leads me to believe for the reason above (vague and unsubstantiated claims by the plaintiff) used for the general denial, that it then meets one of the necessary criteria for a DEMURRER. IE; The complaint is uncertain or unclear, see below

This could be denied by the judge leaving me on track with the rest of the process, nothing lost. OR, if upheld,

this would cause the plaintiff to amend, thus making it more revealing as to the hand they hold or they do not amend and then it gets dismissed. Make sense?

From the Sacramento public law library

DEMURRER

A Demurrer is used to tell the court that the allegations in the complaint do not provide legally sufficient reason for the defendant to be sued. A Demurrer questions only the legal sufficiency of the allegations, not their truth or the plaintiff's ability to prove them. In the Demurrer, the defendant must state what was left out of the complaint to make it legally insufficient.

The defendant can object to all or just parts of the complaint on various grounds, including:

1. The complaint fails to state a cause of action

2. The complaint is uncertain or unclear

3. Another action is pending between the parties for the same cause of action

4. The plaintiff does not have the legal capacity to sue

Additional grounds for filing a demurrer can be found at California Code of Civil Procedure § 430.10.

If the Demurrer is overruled, the Defendant must file an Answer to the original complaint within 10 days (California Rules of Court, Rules 3.1320(g), (j)). If the Demurrer is sustained with leave to amend the complaint, the Plaintiff can correct the errors in the complaint, serve the Defendant with an Amended Complaint, and the case will proceed. If the Demurrer is sustained without leave to amend the complaint, the case is usually dismissed.

As far as I can tell, normally a demurrer would be filed first instead of an answer, but I do not see any where that you can not put forth a Demurrer after a General Denial?

So the strategy is simple,

General denial form with plethora of applicable affirmative defenses that make the case for "The complaint is uncertain or unclear" criteria of a Demurrer

Then follow up with a Demurrer with the court based on meeting that one criteria for all counts and let the judge decide to sustain or deny. As far as I can tell, by doing so I lose nothing and gain time and or information or a dismissal? If the JDB can huff and bluff there way around the system, I think this is a way to blow some of it back their way.

I am probably reaching here to meet the lack of "legal sufficiency of the allegations" but why not for the reasons stated above?

So if it makes sense with nothing to lose, should I send the Demurrer with the General Denial form so the judge has both in hand at the same time? or send separately?

Or blow off this idea completely?

Knowledge is power, to move a boulder or blow my own hand off!!

So comments highly appreciated !

Thank you everyone for posting the relevant links to study, big help for a newbie

[nodebtnow]

on second thought. it looks like a lot of work for little results. Back to:

Moving on to BOP

I've read that asking for a BOP after being served is useless? or is that for some other states and not California? I mean that would be a normal part of my discovery anyway and it seams to have traction for California defendants I've been reading about.

If I understand the big picture here, It seams that the best defense is the plaintiffs lack of documentation to support their case which becomes my best course of action in the pre-trial phase. Is that a correct view?

And another thing, how can they even prove they have the right John Doe? I mean how many John Doe's are in the phone book! The complaint could have been handed to any "John Doe" with that name on it and he would have to go through this same process. There is no SS number or any other cross referencing feature of the complaint that proves I'm the right John Doe.

Which is one of my Affirmative defenses I think. Is this a defensible position given the vagueness of the complaint? I mean it all starts with identifying the right defendant right?

j

[skippy1960]

on second thought. it looks like a lot of work for little results. Back to:

I think you are right in foregoing the DEMURRER,, it sounds as if they used pleading forms to make the complaint. If they checked the proper boxes they have likely met the burden, why spend alot of energy and time here. So get your answer prepared and file it. There will be a first paper filing fee, I believe it will range from $235-$325 dollars. Don't forget to complete your proof of services and file. You will need 3 copies of everything you are going to file, one for the court, one for the plaintiff and a copy for your self.

Moving on to BOP

I've read that asking for a BOP after being served is useless? or is that for some other states and not California? I mean that would be a normal part of my discovery anyway and it seams to have traction for California defendants I've been reading about.

CCP 454 can be a useful tool, although they need to have plead a cause of action for "Breach of Contract". Above it seems they are staying with Common Counts only, "Account Stated", Money Lent, etc. It is easy to put together and forces them to do some work. You won't file with court, and cost is CMRR only. So I would send it anyway to make them respond to see what you get back.

If I understand the big picture here, It seams that the best defense is the plaintiffs lack of documentation to support their case which becomes my best course of action in the pre-trial phase. Is that a correct view?

Lack of Standing is something they will need to prove their case, via a Bill of Sale from Chase. They will eventually need an affiant, and this is where you will have a good opening to win.

And another thing, how can they even prove they have the right John Doe? I mean how many John Doe's are in the phone book! The complaint could have been handed to any "John Doe" with that name on it and he would have to go through this same process. There is no SS number or any other cross referencing feature of the complaint that proves I'm the right John Doe.

Don't worry about the John Doe's, you are being sued, you need to protect yourself. They aren't trying to get John Doe to pay they are trying to get you to pay. Pleading these allow them to keep the case alive if you come back and say this is not my account, it is my twin brothers, here is all his information.

Which is one of my Affirmative defenses I think. Is this a defensible position given the vagueness of the complaint? I mean it all starts with identifying the right defendant right?

Once you file your answer denying the complaint, you are telling them prove I am the person who opened, charged amounts, made payments and defaulted on the account. Affrimative Defenses should be used sparingly, Lack of Standing, Statute of Limitations are generally fine, but be careful throwing 15 or twenty Affirmative Defenses at the case. j

See answers in Bold above-

Finally, keep reading and reserching as you find things save them to a file on your computer. Don't think you will easily comeback to a thread to find a case that you may need. Justice moves slowly in California if you file an answer, so don't get in a rush, but you have to allow adequate time to work on your case.

Best of Luck

[nodebtnow]

that makes great sense and helps clear the fog, thanks SKIPPY1960!

The appropriate number of affirmative defenses makes sense, concise and to the point in response to the claims. I suppose I do not have to directly affirm I am the correct John Doe in the General Denial.

I'll be in Ventura Tuesday so I'll be right there near the court to file it in person.

You are right about keeping a folder of post references!! wow, they get hard to find again otherwise and I'm not naturally organized anyway, managing all the references is a bit daunting. Step back, take a breath, it's not rocket science but I don't want to shoot myself in the foot with an inadequate answer.

Everyone on this forum is so helpful, I feel very supported and able to take this on.

[calawyer]

And another thing, how can they even prove they have the right John Doe? I mean how many John Doe's are in the phone book! The complaint could have been handed to any "John Doe" with that name on it and he would have to go through this same process.

j

"Doe" defendants are unique to California practice. If someone doesn't know the name of a person who may be responsible for the acts set forth in the complaint, they can name "Does" as defendants. Then, if they later discover the true name of the person, they can be substituted for a Doe without having to file a motion to amend the complaint.

Don't worry about the Does. They should be in every complaint.

[nodebtnow]

Shooting off the Answer to the plaintiff CRRR withand filing with the court tomorrow afternoon.

Any feed back would be awesome.

Used the General Denial form as suggested, easiest

then attached the following Affirmative Defenses Per READYTOWININCA post as I found they covered my bases well enough and fit the unverified claim, I think the 4th is the catch all that would let me refine my defenses as facts come forth in discovery and learn more.

1) That neither the unverified Complaint nor any cause of action in the Complaint states facts sufficient to state a cause of action or claim against this answering Defendant.

2) Answering Defendant has had No Prior Course of Dealing with Plaintiff sufficient, or at all, to support this action or certain causes of action therein.

3) Answering Defendant has had no meeting of the minds or agreement as to the amount, if any, due and owed under the parties’ agreement, if any, sufficient to support this action or certain causes of action therein.

4) That as Plaintiffs’ unverified Complaint on file herein is set forth in conclusionary terms, this answering Defendant cannot fully anticipate all affirmative defenses and/or immunities that may be applicable to the within action. Accordingly, the right to assert additional affirmative defenses and/or immunities, if and to the extent that such affirmative defenses and immunities are applicable, is hereby reserved.

WHEREFORE, Defendant prays for Plaintiff to take nothing from the suit, and for the court to grant costs of suit, including any attorneys fees incurred and any other relief the court deems proper.

I know I'm a Pro per and not entitled to fees, but just in case I pay for one.

well, this is step one!!

[nodebtnow]

OK, answer filed with court yesterday, copy sent to lawyers mailing address CMRRR.

On to discovery.

Reading all the posts, I have noticed that defendants get served discovery by plaintiff with questions designed to get the defendant tripped up and admit guilt in any way possible. Asking for proof as to why they deny etc. etc.

What I have not noticed, is why doesn't a defendant go on the offensive and form their own questions of discovery forcing the Plaintiff to admit or deny they do not possess the necessary proof to support their case? Or something like that? Make sense or is this not allowed by court procedure? You know, put the shoe on the other foot?

Like maybe for example:

PLAINTIFF ADMITS they do not have nor can produce the complete chain of signed receipts totaling the amount being sought by plaintiff created by defendant.

PLAINTIFF ADMITS they do not have a standing agreement between defendant and plaintiff for the unsubstantiated account or its total as stated in the complaint.

interested in feedback

[calawyer]

OK, answer filed with court yesterday, copy sent to lawyers mailing address CMRRR.

On to discovery.

Reading all the posts, I have noticed that defendants get served discovery by plaintiff with questions designed to get the defendant tripped up and admit guilt in any way possible. Asking for proof as to why they deny etc. etc.

What I have not noticed, is why doesn't a defendant go on the offensive and form their own questions of discovery forcing the Plaintiff to admit or deny they do not possess the necessary proof to support their case? Or something like that? Make sense or is this not allowed by court procedure? You know, put the shoe on the other foot?

Like maybe for example:

PLAINTIFF ADMITS they do not have nor can produce the complete chain of signed receipts totaling the amount being sought by plaintiff created by defendant.

PLAINTIFF ADMITS they do not have a standing agreement between defendant and plaintiff for the unsubstantiated account or its total as stated in the complaint.

interested in feedback

You all agonize over discovery because you are signing under penalty of perjury and you want to tell the truth (which you should).

Plaintiffs will just deny everything.

[nodebtnow]

Some obviously do agonize . I was just exploring why this wasn't done? Since the burden of proof is on them, and the general defense is their lack of evidence, then why not let them know you know that while you are waiting for the BOP to arrive. Thought it was a valid question.

This all sound like I high stakes (depending on the $ value of the suit) BS game.

But what am I? just a nube asking misinformed questions I suppose.

I guess I'm just to focus on obtaining what they do not have in my discovery right now?

[calawyer]

Some obviously do agonize . I was just exploring why this wasn't done? Since the burden of proof is on them, and the general defense is their lack of evidence, then why not let them know you know that while you are waiting for the BOP to arrive. Thought it was a valid question.

This all sound like I high stakes (depending on the $ value of the suit) BS game.

But what am I? just a nube asking misinformed questions I suppose.

I guess I'm just to focus on obtaining what they do not have in my discovery right now?

No not at all. I was being flip and I should not have been.

My point was that a RFA along the lines you suggested would be futile. Plaintiff will simply deny it.

I think the best course of action in these cases is to force plaintiff to commit to the documents they have and those they don't have. That means:

1. BOP. Move to compel anything other than a complete response.

2. Doc Demand asking for contracts, assignment agreement and all statements. Move to compel any response that does not promise to provide "all responsive documents in plaintiff's possession, custody, or control." (That is what the Code requires).

3. CCP 96 before trial.

Of course, this is for the run of the mill case. If you are the victim of identity theft, for example, you will want to insist that plaintiff produce something that you have allegedly signed. If you think the case is barred by the SOL, you should do a ROG asking for the date of default, etc.

My two cents.

Edited September 15, 2012 by calawyer

[nodebtnow]

new information on case.

The JDB sent their version of the BOP back to me this week, it consists of the following.

1. Pleading paper cover sheet, "plaintiff hereby responds pursuant to code 454 defendants demand for BOP, yada yada, Plaintiff reserves the right to supplement response upon discovery of additional documents, yada yada.

2. 4 photocopied pages of a card holder agreement with "Chase Manhattan Bank" HAND WRITTEN ON THE FIRST PAGE with the default and collections paragraph circle by hand.

3. Bill of Sale with Chase logo on the page dated 10/15/10, number of accounts sold 31451. It states that it was sold to "Hilco Receivables" at the bottom, Hilco is lined through and EAF is hand written in place. ( Equable Accent Financial, the plaintiff now in this case who apparently bought it from Hilco? )

4. Affidavit of Sale stating dated 11/28/11 that Chase sold this account to Hilco receivables on 10/8/10 and that Chase has no further interest in this account and that the last payment was made on 12/27/09.

5. ONE statement from 9/9/09 showing the final balance before being sold to Hilco, half of which is illegible

6. Proof of service from KG on pleading paper.

from what I have read elsewhere this is far less than required?

Should I now move straight to compelling then for the full document response as Calawyer suggests?

"Move to compel anything other than a complete response". Doc Demand asking for contracts, assignment agreement and all statements. Move to compel any response that does not promise to provide "all responsive documents in plaintiff's possession, custody, or control." (That is what the Code requires).

No signed contract between Chase or Hilco or EAF was in the package. this chase account goes as far back as Providian as I recall, must they provide all documentation prior to Chases ownership?

it's also interesting that the statement submitted for the period of 7/23/10 to 8/22/10 but the balance is the amount noted in the sale to Hilco except that Chase stated the last payment was made 12/27/09

Thank you all again for the advice and confidence to move towards a successful conclusion for this defendant!!

j

[nodebtnow]

bump