Themis

Sued in California - verification, causes of action and affirmative defenses?

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Hi everyone :)++

I'm helping a friend who is being sued by CACH, LLC for a credit card debt in California. I've been lurking around here weeks, reading and learning, and I feel I'm on the verge of starting to understand this stuff a teeny, tiny bit :lol: But I do have some questions I hope you guys can help me with.

ok, here's the info:

1. Who is the named plaintiff in the suit?

CACH, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

$5,000+ Limited Civil

4. Who is the original creditor? (if not the Plaintiff)

Wells Fargo Bank, N.A. or its predecessor-in-interest

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door)

Substitute service. Papers were left with person at work, another copy mailed to work address.

7. Was the service legal as required by your state?

Yes

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

None. This was the first communication.

9. What state and county do you live in?

California

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

It is not outside SOL

11. What is the SOL on the debt? To find out:

4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Proof of Service filed by Plaintiff

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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

40 days from date of service to respond (approximately 3 weeks from now).

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence was sent. Just a Summons, a Complaint, a Civil Case Cover Sheet, a Notice of Case Assignment, and a Verification.

The first part of the Complaint is General Allegations and there are 10 paragraphs.

Right after that there are three Causes of Action:

1. Complaint For Money Due on Breach of Contract

2. Account Stated

3. Money Lent Paid or Expended

The Verification was written by the attorney for the Plaintiff, but it seems to just be a verification of the venue. It says, in part, "[...] I have read the foregoing documents and know the contents thereof. Based on the business records of the Plaintiff and my review of available factual information, venue lies properly with this court because [...]"

I think this means that the Complaint is not verified, so I can just do a general denial. Is that right? I'm using form PLD-C-010 and checking box (3a) Defendant generally denies each statement of the complaint or cross-complaint.

I'm kind of stuck on Affirmative Defenses. So far I'm using Lack of Standing and Failure to State a Cause of Action. Of course, everything can be changed if necessary. This is just where I'm at right now.

My (tentative) plan at this point is to file the Answer right before the 40 days is up, and then right away send a Demand for BOP. Am I on the right track so far?

So I guess my main questions right now are (1) am I right in thinking that the Complaint is not verified, (2) what the heck do I do about Account Stated, and (3) are my Affirmative Defenses reasonable or ridiculous? Are there others I should use?

Thanks in advance for any help with this. And please feel free to add any info I might have forgotten to ask about ~ my mind is about scrambled at this point :p

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Welcome to the forum, you've found the right place.

From everything you've posted, it does appear the complaint is not verified...it would be a surprise to me if it was as verified complaints of this nature are pretty rare.

Your defenses are fine and you're using the right form for general denial. Make sure you use proper proof of service (have someone else mail copies of your answer and anything else you send to the plaintiff's attorney).

Don't wait on the BOP, go ahead and send that off to get the process started. Don't worry about account stated at this point, although BOP isn't applicable for account stated, it is for the other 2 causes of action and is a very powerful tool to assist you in your case.

Best advice I can give, READ READ READ...get to know your local rules of civil procedure, read through the threads here and don't be afraid to ask questions.

Best of luck!

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Welcome to the forum, you've found the right place.

From everything you've posted, it does appear the complaint is not verified...it would be a surprise to me if it was as verified complaints of this nature are pretty rare.

Your defenses are fine and you're using the right form for general denial. Make sure you use proper proof of service (have someone else mail copies of your answer and anything else you send to the plaintiff's attorney).

Don't wait on the BOP, go ahead and send that off to get the process started. Don't worry about account stated at this point, although BOP isn't applicable for account stated, it is for the other 2 causes of action and is a very powerful tool to assist you in your case.

Best advice I can give, READ READ READ...get to know your local rules of civil procedure, read through the threads here and don't be afraid to ask questions.

Best of luck!

Thank you, Scientific :D

So, can I send the BOP at the same time as the Answer?

And do I send the Answer to the Plaintiff's attorney at the law office, ATTN: [attorney name] with a Return Receipt Requested?

File a general denial as an answer and ask for a BOP. That will put the ball back in your court.

Thanks, 1stStep, I'll do that.

ok, I'm off to do some BOP research! Thanks again!

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ok I have my demand for BOP written up but I have a question about which causes of action I can use it for. Is it only for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit]? Or can I use it for Breach of Contract? And can I have more than one cause of action in it?

The way I have it written right now is for Money Lent Paid or Expended, and I want to know if I can add Breach of Contract. I hope this makes sense :lol: Thanks!

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ok I have my demand for BOP written up but I have a question about which causes of action I can use it for. Is it only for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit]? Or can I use it for Breach of Contract? And can I have more than one cause of action in it?

The way I have it written right now is for Money Lent Paid or Expended, and I want to know if I can add Breach of Contract. I hope this makes sense :lol: Thanks!

Calawyers BOP is mostly bullet proof and the other side will have to scramble. Hold them to tight deadlines on this, and prepare form interrogatries dont ask for alot I believe you have 35 requests total.

use the ones here on the boards and read the caselaw cited all around.

I like that we have become skilled enough to make CA's sweat. You would think when the JDB's see that BOP they have to know it is a CIC member and should treat us like VIP's. That is funny you could make a rap song out of that.

(to the beat of Curtis Blow) "The JDB got a BOP and filled a Dismissal without the P. Litigation is hard enough, especially with a member of CIC. I went to court, gave my retort and the judge ruled against me, so now I have to tell client, that they gotta pay the answer fee. Damn they say, no you will pay, because you had the law degree. I now have to sue them to get my attorneys fees. So if you see, a BOP, run hard from CIC, because you are, one step from a complaint to the Bar."

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ok I have my demand for BOP written up but I have a question about which causes of action I can use it for. Is it only for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit]? Or can I use it for Breach of Contract? And can I have more than one cause of action in it?

The way I have it written right now is for Money Lent Paid or Expended, and I want to know if I can add Breach of Contract. I hope this makes sense :lol: Thanks!

Don't worry about which cause of action CCP 454 applies to, they will either send back to you a small amount of information, that will not be sufficient or will send back an objection based on the cause of action being "Account Stated".

You will then go back on offense and point out they need to send the information related to the other causes of aciton, drop them from the complaint.

In any instance they will be dealing with your file. This was not their plan, thier plan was default judgment.

Finally, I would file my answer at the 30 day deadline. You continue to quote 40 days, I assume based on the type of service you recieved. Better to meet the broader timeline of 30 days, which court clerks are in tune with. If you wait even if you are correct, they could still file for Default at the 30 day timeline. Then you would have to fight this, extra work for you..

I generally like to have them doing all the extra work, from an offensive standpoint, instead of playing defense to correct an issue...

Good Luck

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If that is the only declaration, it sounds like a declaration of venue. If the complaint is verified, there is a declaration saying that someone read the complaint and knows that the allegations are true (or an attorney's declaration saying that the client resides out of the County and the attorney believes the allegations are true).

BOP works for breach of contract. Search my posts for "Distefano". That is a very helpful case for breach of contract.

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Calawyers BOP is mostly bullet proof and the other side will have to scramble. Hold them to tight deadlines on this, and prepare form interrogatries dont ask for alot I believe you have 35 requests total.

use the ones here on the boards and read the caselaw cited all around.

I like that we have become skilled enough to make CA's sweat. You would think when the JDB's see that BOP they have to know it is a CIC member and should treat us like VIP's. That is funny you could make a rap song out of that.

(to the beat of Curtis Blow) "The JDB got a BOP and filled a Dismissal without the P. Litigation is hard enough, especially with a member of CIC. I went to court, gave my retort and the judge ruled against me, so now I have to tell client, that they gotta pay the answer fee. Damn they say, no you will pay, because you had the law degree. I now have to sue them to get my attorneys fees. So if you see, a BOP, run hard from CIC, because you are, one step from a complaint to the Bar."

That's awesome :lol: Thank you very much!

Don't worry about which cause of action CCP 454 applies to, they will either send back to you a small amount of information, that will not be sufficient or will send back an objection based on the cause of action being "Account Stated".

You will then go back on offense and point out they need to send the information related to the other causes of aciton, drop them from the complaint.

In any instance they will be dealing with your file. This was not their plan, thier plan was default judgment.

Finally, I would file my answer at the 30 day deadline. You continue to quote 40 days, I assume based on the type of service you recieved. Better to meet the broader timeline of 30 days, which court clerks are in tune with. If you wait even if you are correct, they could still file for Default at the 30 day timeline. Then you would have to fight this, extra work for you..

I generally like to have them doing all the extra work, from an offensive standpoint, instead of playing defense to correct an issue...

Good Luck

Thank you, skippy! Yes, I was going with 40 days because of the substitute service, but now I'm going to be filing everything on Monday, which is 30 days (+1 for the 30th day being a Sunday).

Here is an article on Defending yourself:

Here are some threads to get you started on the right track...

1.

2. Nice meet and confer letters and followups to BOP's

3. Answers to Cach's Discoveries (Documents, Interrogatories, Admissions):

helpme...

Thanks so much, helpme! Those links will really 'help me' all along the way (sorry, I couldn't help myself :p)

*edit* I had to remove helpme's links from my reply because I only have 3 posts :lol:

If that is the only declaration, it sounds like a declaration of venue. If the complaint is verified, there is a declaration saying that someone read the complaint and knows that the allegations are true (or an attorney's declaration saying that the client resides out of the County and the attorney believes the allegations are true).

BOP works for breach of contract. Search my posts for "Distefano". That is a very helpful case for breach of contract.

Thank you, calawyer! Yes, that was the only declaration and it said nothing about the allegations in the complaint.

Based on my search of your posts, I will be adding Breach of Contract to the wording of my BOP (along with money lent paid or expended). Everything will be ready to go out Monday.

One more question... do I send a copy of the POS to the Plaintiff's attorney along with the Answer?

ok I lied, I have more than one question :lol: Can I send the BOP in the same envelope as the Answer? Or should it be in its own envelope? And do I need to file a POS for the BOP and/or send a POS to Plaintiff's attorney with the BOP?

Thanks again, I really appreciate all your help. All of you :D

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One more question... do I send a copy of the POS to the Plaintiff's attorney along with the Answer?

Yes you send them a POS with EVERYTHING you send. If you put 2 differnet docs in one envenlope you can describe all those docs on the POS. Also send them CMRRR and save them and attach them to the applicable paperwork in your file.

Example is you send them the answer. Make 3 copies of it and the POS. Original and 1 copy get stamped by the court. The court keeps the stamped copy and you keep the original copy that they stamped. Send the unstamped copy of the answer with a copy of the POS. The court wants a copy of the POS also.

A good little trick is you can save the POS PDF. Fill in the stuff you're going to keep the same every time and then save it. Then when you open it all the top info is ready and you just add the type of docs you're sending and print it.

Edited by ASTMedic
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Yes you send them a POS with EVERYTHING you send. If you put 2 differnet docs in one envenlope you can describe all those docs on the POS. Also send them CMRRR and save them and attach them to the applicable paperwork in your file.

Example is you send them the answer. Make 3 copies of it and the POS. Original and 1 copy get stamped by the court. The court keeps the stamped copy and you keep the original copy that they stamped. Send the unstamped copy of the answer with a copy of the POS. The court wants a copy of the POS also.

A good little trick is you can save the POS PDF. Fill in the stuff you're going to keep the same every time and then save it. Then when you open it all the top info is ready and you just add the type of docs you're sending and print it.

Excellent idea! Thank you very much :D

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Today the Answer and the BOP were served by mail on the Plaintiff's attorney. Then I filed the Answer at the courthouse and the clerk scheduled a date for the CMC for about 2 months from now.

To be honest, I'm kind of looking forward to seeing how they respond to the BOP. It feels a bit like playing Texas Hold'em :lol:

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Today the Answer and the BOP were served by mail on the Plaintiff's attorney. Then I filed the Answer at the courthouse and the clerk scheduled a date for the CMC for about 2 months from now.

To be honest, I'm kind of looking forward to seeing how they respond to the BOP. It feels a bit like playing Texas Hold'em :lol:

Bet they bitch that BOP isn't valid with acct stated

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Well, they got the Answer and the demand for BOP and I know this because they've just sent a ton of papers (but so far they are ignoring the BOP).

The first thing they sent was a letter explaining that now the court is going to have to hold a trial because an answer to their complaint was filed, and how they try many of these cases each year and successfully obtain judgments in their client's favor a substantial majority of the time, so they are offering a repayment plan set forth in the enclosed Stipulation for Entry of Judgment Upon Default that they want signed and returned to them along with the first payment. This will most likely be ignored in its entirety :lol:

Then the next day they sent a big, scary stack of papers xbugeyesx There are Form Interrogatories (4 items checked), Special Interrogatories (11 numbered questions), Request for Admissions (8 numbered admissions), and Request for Production of Documents (5 numbered items). It's like they're almost using up all of their discovery items all at once!

Now I've been reading here like mad for about 2 months and I thought I pretty much knew what to do but now that it's all in front of me I've suddenly turned stupid :lol: I really hope someone can help with all this stuff because right now I feel like I don't even know where to begin. But I guess I should just start somewhere, otherwise no one will know what to help with... so, I'll just start with the admissions:

1. Admit that ORIGINAL CREDITOR (for purposes of these Requests for Admissions, "ORIGINAL CREDITOR" means Credit Card Bank, NA) issued YOU (for purposes of these Requests for Admissions, "YOU" and "YOUR" mean and refer to FriendOfThemis, your agents, attorneys, representatives or anyone acting on your behalf) the CREDIT CARD ACCOUNT (for purposes of these Requests for Admissions, "CREDIT CARD ACCOUNT" means the Credit Card Bank, NA credit card account number XXXXXXXXXXXXXXXX which is the subject of this lawsuit).

2. Admit that YOU used said CREDIT CARD ACCOUNT (e.g., for purchases and/or cash advances).

3. Admit that YOU and ORIGINAL CREDITOR entered into the cardmember agreement regarding the CREDIT CARD ACCOUNT.

4. Admit that ORIGINAL CREDITOR mailed monthly statements to YOU regarding YOUR CREDIT CARD ACCOUNT.

5. Admit that YOU have not paid the outstanding balance on said CREDIT CARD ACCOUNT.

6. Admit that YOU owe the Plaintiff the amounts prayed for in the Complaint.

7. Admit that YOU have no facts which would vary the amounts owed to Plaintiff.

8. Admit that YOU have no affirmative defenses against the Plaintiff's Complaint.

ok here's some background info that might help:

  • The Complaint did not have any evidence attached to it. It did not even include an account number.

  • The first contact with Plaintiff was this lawsuit.

  • There were 4 Affirmative Defenses in the Answer - Lack of Standing, Failure to State a Cause of Action, Improper Notice of Breach, and Reservation of Rights. (If you need the exact wording, let me know and I'll type them out)

  • They have not responded to the Demand for BOP yet.

Let me know if I need to provide any more info. And thanks in advance for helping with this, I truly appreciate it :D

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For #1-5 I recommend using something along the lines of the following:

Defendant objects to this Request for Admission on the ground that after reasonable inquiry the information known or readily obtainable by defendant is insufficient to accurately respond to this request. Plaintiff's complaint is utterly devoid of any factual information regarding the alleged debt and any agreement giving rise to the alleged debt and Plaintiff has not sufficiently responded to Defendant's discovery seeking such factual information. Based upon the foregoing, Defendant responds as follows: DENIED.

#6 and 7 I would simply use: DENIED.

#8 - Denied. Defendant's affirmative defenses are listed in the Answer to Plaintiff's Complaint.

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Slight variation for 1-5:

Defendant objects to the phrase "CREDIT CARD ACCOUNT" on the ground that it is vague and ambiguous in the context of this litigation. Plaintiff's complaint is devoid of any factual information regarding the alleged debt. For that reason, defendant has asked plaintiff to respond to a Bill Of Particulars setting forth [the contract referred to in the complaint, all charges that were allegedly made pursuant to that contract, all credits that were made to the account].....(whatever you asked for in the BOP). Although the code requires the plaintiff to respond in 10 days, plaintiff has not provided the complete account. Without such information, defendant is unable to provide the information sought in this Request. Defendant reserves the right to supplement [his/her] answer to this Request after plaintiff complies with its obligations under the Code.

Plaintiff will say that it has given you the account number in the definition in #1. You will say that you need statements to respond to these RFAs. Same for the rest of the discovery.

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This is so incredibly helpful! Thank you both so much!

A couple more questions... please? :D

  • For 1-5, do I need to use the exact wording that I used in the BOP?

  • And for 1-5, do I still need to say "DENIED"?

  • And can I really just say "DENIED" for 6-7 and leave it at that with no explanation?

Thanks again! With your help this seems (almost) manageable now :D

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For 1-5, do I need to use the exact wording that I used in the BOP?

No, but you might as well.

  • And for 1-5, do I still need to say "DENIED"?
    Yes. For the RFAs you will add a new paragraph and say, "Without waiving the foregoing objections, Defendant responds as follows:
  • DENIED. " For the Rogs and RFAs, you won't need to.

  • And can I really just say "DENIED" for 6-7 and leave it at that with no explanation?
    Yes. After looking at 7 again, however, I would object on the ground that the word "vary" is vague and ambiguous. Without waiving the foregoing objection, Defendant responds as follows:
  • DENIED.

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Without a doubt, calawyer has to be one of the coolest people on the entire world wide web!

In fact, all of you people here are pretty cool :D

No, but you might as well.

  • Yes. For the RFAs you will add a new paragraph and say, "Without waiving the foregoing objections, Defendant responds as follows:
  • DENIED. " For the Rogs and RFAs, you won't need to.

  • Yes. After looking at 7 again, however, I would object on the ground that the word "vary" is vague and ambiguous. Without waiving the foregoing objection, Defendant responds as follows:
  • DENIED.

Regarding the portion of your quote in bold, do you mean the request for production of documents?

On another note, I went back and read again one of the threads that helpme linked to and I realized that my discovery stuff is almost exactly the same as what 1111girl and mommamia3 got. I'm thinking this will prove most helpful ;)

Thanks a million!

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Regarding the portion of your quote in bold, do you mean the request for production of documents?

New rule. No posts for Calawyer until the second cup of coffee.

Yes. Sorry. I did mean RFPs.

On another note, I went back and read again one of the threads that helpme linked to and I realized that my discovery stuff is almost exactly the same as what 1111girl and mommamia3 got. I'm thinking this will prove most helpful ;)

Yes. Both will help you a lot. Interesting that the same discovery gets issued, don't you think?

P.S. Thanks for the kind words!

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New rule. No posts for Calawyer until the second cup of coffee.

Yes. Sorry. I did mean RFPs.

:lol: No problem, I thought I knew what you meant, but thanks for clearing it up for me anyway :p

Yes. Both will help you a lot. Interesting that the same discovery gets issued, don't you think?

P.S. Thanks for the kind words!

It is indeed. I guess it's an easy way for them to try to overwhelm us with mountains of paperwork. But I've often found that the easy way is not always the best way ;)

I hope you'll be around later ~ I'll have their response to the BOP this evening and I'm looking forward to letting you know what they sent.

I'm working on answering the rest of their discovery this afternoon, so wish me luck! And thanks again!

P.S. I hope you like kind words because I've got lots and lots of 'em for ya!

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