griffin24

BOP Response from Moore Law Group

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I am being sued by Discover Bank (The Moore Law Group) in California. I was served, filed my answer and received CMCC date. However, I sent Moore Law Group, BOP request last week. Today I received in the mail 12 months of statements, a copy of my application (in my writing) w/a cover letter stating contents of the envelope and that discovery and investitgation is still pending. I have read posts on the forum for a couple of hours, but I have not read direct advice with this BOP response. Any thoughts, please?

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It's a deficient response... they need to provide the entire account history per CCP454.

Send a meet and confer and let them know - give them a few days to provide a complete response.

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NOTICE OF MOTION AND MOTION TO COMPEL BILL OF PARTICULARS

NAME

Address

San Bernardino, CA 91755

Defendant, In Pro Per

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SAN BERNARDINO

111 North Hill Street, San Bernardino, CA 91755

Branch – Civil Limited

XXXXXXXXX,

Plaintiff,

vs.

XXXXXXXXX,

Defendant, )

Case No.:

NOTICE OF MOTION AND MOTION

TO COMPEL BILL OF PARTICULARS;

MEMORANDUM OF POINTS &

AUTHORITIES; DECLARATION

of XXXXXXXX IN SUPPORT OF

MOTION TO COMPEL FURTHER

RESPONSE TO BILL OF PARTICULARS

DATE: July X, 2012

TIME: 8:30 am

DEPT: 77

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on XXXX, 2012 at 8:30 a.m. in Department 77 of the above-entitled Court located at 111 North Hill Street, Los Angeles, California, Defendant will move, and hereby does move, for an Order compelling Plaintiff to respond fully to Defendant’s Bill of Particulars or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. The motion is made pursuant to Code of Civil Procedure section 454 on the ground that Plaintiff has refused to respond to Defendant’s demand for a Bill of Particulars and good cause exists for the relief requested in this motion.

This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Declaration of XXXXXXXXX filed herewith, all of the papers and pleadings on file in this action and such other evidence and argument as shall be adduced at or before the hearing hereof.

DATED: April 23, 2012 ___Signature_____________

Name, In Pro Per

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

On October 12, 2011, plaintiff filed a complaint in this matter. The complaint alleges that defendant owes plaintiff the sum of $XXX.XX pursuant to an agreement between defendant and Capital One Bank (USA) NA. No such agreement is attached to the complaint. The complaint sets forth no facts supporting the amount claimed to be owing.

For this reason, on March 13, 2012, defendant served Via Certified Mail RRR, a request for Bill of Particulars on plaintiff. Plaintiff’s response was wholly inadequate. No contract has been produced. Nor has plaintiff produced all account statements justifying the amount claimed to be owed in the complaint. Defendant therefore asks that this Court order plaintiff to supplement its Bill of Particulars producing a complete accounting, a copy of the contract referred to in the complaint and a copy of any agreement assigning this claim to plaintiff. In the alternative, defendant asks that the Court enter an order precluding plaintiff from offering any such evidence at the trial of this matter.

II. ARGUMENT

Code of Civil Procedure section 454 governs the use of a Bill of Particulars in California. Pursuant to this section, a plaintiff need not detail all items of an account in the complaint. However, upon request, plaintiff must provide all such information within 10 days or be precluded from giving evidence thereof at trial:

"It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular."

Here, defendant served a request for a Bill of Particulars on March 13, 2012 pursuant to CCP 454. Declaration of XXXXX in Support of Motion for Further Bill Of Particulars paragraph 1. Defendant asked for a bill of particulars setting forth the items and details of the account on which the cause of action for goods sold and delivered of plaintiff’s complaint is based, including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered, the price or charge made for each such item or transaction; and all payments or credits that have been made to the account. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

Plaintiff’s response was wholly deficient. Plaintiff responded to Defendants demand for Bill of Particulars by contending that a Bill of particulars is innapplicable to plaintiffs cause of action. A true copy plaintiff’s response is hereto attached as Exhibit "B.” It did not provide contract, 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. Defendants good faith effort to meet and confer to avoid the necessity of bringing this motion were futile.

On March 29, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second request for Bill of Particulars, Via Certified Mail RRR. A true copy of my March 29, 2012 letter is attached as Exhibit "C."

On April 2, 2012, Plaintiff responded to Defendants demand for Bill of Particulars by claiming Plaintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or the parties’ agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at the trial. A true copy of plaintiff’s response is hereto attached as Exhibit “D”.

On April 13, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a letter Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “E”.

On April 17, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second letter, Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “F”.

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 Court should require plaintiff to do so immediately.

III CONCLUSION

Plaintiff’s response to defendant’s Bill of Particulars is inadequate. The Court should require plaintiff to supplement its response immediately and produce all statements pertaining to this account from inception showing all payments made and charges to the account at issue. In addition, plaintiff should produce the contract referred to in the complaint and any agreement assigning the claims at issue to the plaintiff. In the alternative, the Court should enter an order pursuant to Code of Civil Procedure section 454 precluding the plaintiff from offering any such evidence at trial.

DATED: April 23, 2012XXXXXXXXX

In Pro Per

DECLARATION OF XXXXXXXXX IN SUPPORT OF MOTION TO COMPEL

FURTHER RESPONSE TO BILL OF PARTICULARS

I, XXXXXXXXXX declare as follows:

I am the defendant in the above-entitled proceeding. I have personal knowledge of all the facts contained herein, and if called to testify, could and would testify competently thereto.

1. Defendant served his Demand for Bill of Particulars Via Certified Mail RRR to Plaintiff’s attorney, Mark D. Walsh, on March 13, 2012. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

2. On March 20, 2012, defendant received Plaintiff’s objection to Demand for Bill of Particulars, claiming that a Bill of Particulars may be served on the plaintiff only in an action on an account. It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof…”A bill of Particulars is not appropriates in an action on account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: i.e., there is nothing left to itemize. Plaintiffs complaint alleges breach of contract and account stated as causes of action. As such it is plaintiff’s position Bill of particulars is inapplicable to plaintiff’s cause of action. A true copy plaintiff’s response is hereto attached as Exhibit "B.”

3. On March 29, 2012, Defendant sent a letter, Via Certified Mail RRR, to Plaintiff’s attorney Mark D. Walsh, observing that plaintiff’s response was incomplete and insufficient and requesting that Plaintiff provide a supplemental response. A true copy of my March 29, 2012 letter is attached as Exhibit "C."

4. On April 2, 2012, defendant received Plaintiff’s response to Bill of Particulars and One (1) Capital One Bank (USA) NA Statement for April 2012. No further documents were produced. Plaintiff responded by letter claiming that plaintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or parties’ agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at trial. A true copy of plaintiff’s response is hereto attached as Exhibit “D”.

On April 13, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a letter Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “E”.

On April 17, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second letter attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit “F”.

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

Executed this 23rd day of April, 2012 at San Bernardino, California.

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I am being sued by Discover Bank (The Moore Law Group) in California. I was served, filed my answer and received CMCC date. However, I sent Moore Law Group, BOP request last week. Today I received in the mail 12 months of statements, a copy of my application (in my writing) w/a cover letter stating contents of the envelope and that discovery and investitgation is still pending. I have read posts on the forum for a couple of hours, but I have not read direct advice with this BOP response. Any thoughts, please?

Hi griffin,

1ststep is correct in that the response they provided is not sufficient under rules for BOP.

I know it probably freaked you out a bit, getting all those statements, and a copy of your application (in your own writing). But do not worry. Under California rules, any evidence presented has to fall under Evidence rules. Have you reviewed those, yet?

I am sharing this w/you--as these are things you need to know (and to be aware of) in order to defend yourself (and your case) w/the court. But this isn't something you share w/them (opposing counsel--the dudes suing you).

They are attorneys. They know the rules they have to follow and satisfy w/the court. Their hope is that YOU DON'T know this.....They're hoping that by presenting you w/this information, it is enough to frighten you into admitting this is your debt....and that they can get you to offer to settle w/them.

As 1stStep stated, you will send them a letter to meet and confer, letting them know they have not satisfied the Bill of Particulars.

I have many threads bookmarked in my user cp, from when our case was still in court (it was dismissed at the beginning of the year--2012). I'll find a thread that deals w/how to respond to insufficient response to bop, and link it here for you.

Hope this is helpful!

Best,

tigger :mrgreen:

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p.s. Above it looks like racecar has also provided you w/a motion to compel a bill of particulars.

Motions to compel require following a specific time-line, and an additional fee (w/the court clerk's office)....I think motions are $40 or $45 additional, now (anyone confirm this for me...?)

This is certainly another option available to you. If you are interested, be certain to check your local rules of court, so that you file in accordance (if you choose this route).

Ok...going to look for those links.

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As promised, I'm back w/a link. :mrgreen:

The first post in the thread below explains motion to compel BOP vs. Written Discovery. It's an important read, and could be helpful to your case. It could also help you decide which way you'd like to go.

If you continue through to post #9, he links a thread w/an example to a meet and confer/objection to BOP (and more).

http://www.creditinfocenter.com/forums/there-lawyer-house/309078-motions-compel-bop-vs-written-discovery-cal.html

Good luck! :D

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