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Update:

I am trying to put together meet and confer letter but don't know what do put. Any help from you knowledgeable ones is appreciated.

They did not include all statements and payments, only couples prior to the date that lrlo claimed defendant stop or failed to pay; 11/2010 to 8/2011. Payment stopped on around march 2011. The date they claimed that defendant failed to pay was incorrect also. I demanded the contract in my BoP but still no contract attached.

I found couple exemplars of meet and confer, but most of the cases lrlo did not respond. How should I put together a meet and confer letter in this case?

I found this but in this case lrlo did not respond:

"On September XX, 2012, Defendant sent to Plaintiff a request for a Bill of Particulars pursuant to CCP 454. On September XX, 2012, Plaintiff responded to Defendant’s demand for Bill of Particulars by contending that a Bill of particulars is inapplicable to plaintiff’s causes of action: Account Stated.

As a preliminary matter, plaintiff’s objection to Defendant’s Bill of Particulars is not well taken. Plaintiff has also alleged a cause of action for breach of contract. A Bill of Particulars is appropriate under this legal theory . See, Distefano v. Hall (1963) 218 Cal. App. 2d 657, 677 (“Section 454 has received a fairly broad interpretation and has been construed to cover almost any kind of contract action for a money claim made up of more than one item.”)

The information requested consists of the most basic documents that will be required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit.

As the Distefano court noted, “The penalty for failure to furnish a bill of particulars, when one has been demanded, is that no evidence will be allowed in support of the cause of action pleaded.” Please provide a complete response within 10 days or defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial. "

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Update: lrlo responded

I learned some and still learning, thanks to the knowledgeable ones . LRLO responded the BoP. This is what it says:

1. I am an attorney duly license..

2. attached hereto is a Statement of Account showing the current amounts owed

3. In addition to the principal and interest amounts stated within the Statement of Account, the plaintiff may also be entitled to costs and attorney fees per statute and/ or the parties written agreement.

4. Platintiff 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 trial.

They only attached the customer agreement info but still no written contract or any contract attached.

They also attached final statements where it actually controvert itself with the date they claimed defendant failed to pay ( on or about sept 21 2011).

by the way, I checked on my credit report but there are no reports from cap 1.

what should I do at this point? Thanks again, knowledgeable ones. Just by discussing questions here lowers my blood pressure.

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Original thread:

I am being sued by cap 1 through lrlo in cali and I am in the process of filing my general denial since the complaints are not verified. But I don't know how to put a good affirmative defense together, I urgently need help please!

"Factual allegations common to all cause of action"

1. Defendant(s) are over the age of 18 and indebted to plaintiff..

2. Defendant agreed to pay...

3. Plaintiff has duly performed all conditions on its/their part, except the conditions and covenants it was/they were excused or prevented from performing. Despite Plaintiff’s demand, Defendant(s) have not repaid Plaintiff for the charges made and/or the monies loaned, in the amount of $3K

4. Billing staments were mailed..

5. Within the past four years, on or about SEPT 21 2011, the defendant breached the agreement by failing to pay the plaintiff.

6.Plaintiff has made a demand..

7. No part of the above balance owed has been paid to date..

First cause of action: breach of written contract

1. plaintiff set forth by reference..

2. The plaintiff and defendant entered into written contract...

3. The plaintiff sent to defendant bills reflecting, inter alia, all charges incurred withi the accounts, the payment due..

4. Between the date of the aforementioned contract to the present, defendant breached said contract, by ceasing or failing to make the payment due on the Account.

5. No part of the principle sum $3K has been paid

6. As a direct and proximate result of Defendant’s breach of said written contract, Plaintiff has been damaged in the aboved stated sum.

Second cause of action: account stated

7. The account was stated in writing by and between the plaintiff and defendant..

8. There is now due, owing...

9. plaintiff alleges that there is an account stated by operation of law wherein the Plaintiff billed defendant for the credit balance and received no objection to it

10. No part of the above balance owed has been paid...

They did not attached any contract for their claim.

What should I put for my affirmative defense in general denial?

Edited by uumars
need help*received response
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I would say that I deny the debt and that the Plaintiff did not provide any proof that you owe this bill. I don't know if the statute of limitations is passed but that is an affirmative defense, that they are trying to get more money than you really owe (be careful with that tho, you don't want to admit owing anything. You can google lawsuit defenses for your state and find alot of them.

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An affirmative defense is your defense to prove. You don't use you don't owe the debt as an affirmative defense. That would be insane. They sued you, they have the burden of proof. You simply deny their claims and leave the burden of proof to them.

Chiquita was not telling you to use that as an affirmative defense. She was telling you to use statute of limitations if applicable and just answer the lawsuit that you don't own them.

Personally, I just say I am not legally liable to the Plaintiff. That is not saying you don't owe it, how much if you do owe, you don't owe it, or anything else. It's simply saying you can't prove your case by the legal standard that is required and I'm not helping you single bit. It's like pleading not guilty in a criminal case and then shutting up and sitting down.

I don't know but is it required they include the contract attached to the lawsuit. In my state and in many others it is not, but in some it is. You need to make sure before you claim they did not attach the contract and it's not required. Again, I don't know either way on that issue.

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I still don't get what I am to put down as affirmative defense exactly?

I'd put nothing, but lack of standing if you just think you just have to have a affirmative defense listed.

Did you even read the link I sent you. I don't think you did because it appears you still are not aware of what a affirmative defense is. You don't have to agree with what I was saying, but you need to at least understand the legal definition of what a affirmative defense is, because expect interrogatories to come flying if you list affirmative defenses, asking you to explain your defense(s) (which will be fair requests).

Again, those, generally speaking, are yours to prove and very few, if any, are applicable in a credit card lawsuit.

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I agree with Colt. He is giving you good advice. And do read the article he posted a link to. You don't have to have a particular defense if you just state you don't owe the debt or have no recollection of the debt. Since it is not past the statute of limitations you cannot use that.

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How does this look as my affirmative defense?

Affirmative Defense 1: Lack of standing

Defendant is not legally liable to Plaintiff, the Defendant pleads the Plaintiff's complaint fails to state a claim as the Plaintiff has failed to provide prima facie evidence they have standing to bring this action.

Edited by uumars
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Here are the Affirmative Defenses my lawyer used on a General Denial, in California, against a JDB suing only for Account Stated:

1. The complaint fails to state facts sufficient to constitute a cause of action as against this defendant.

2. There is no account stated as alleged in paragraph X of said unverified complaint.

3. Plaintiff is not a proper party to this action and is therefore barred from pursuing same.

4. Plaintiff has failed to mitigate its damages, if any it had.

Good luck,

DH

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How does this look as my affirmative defense?

Affirmative Defense 1: Lack of standing

Defendant is not legally liable to Plaintiff, the Defendant pleads the Plaintiff's complaint fails to state a claim as the Plaintiff has failed to provide prima facie evidence they have standing to bring this action.

How about this.

Affirmative defenses-

Plaintiff lacks standing

Plaintiff has failed to state a claim

The definition of prima facie is if one takes the allegations as pleaded by the Plaintiff as true on their face, with no rebuttal arguments from the Defendant, does the complaint state a valid cause of action where the Plaintiff would win.

If their complaint makes reference to the Plaintiff now being the owner of the debt they have prima facie evidence.

You don't win your case in the answer to the lawsuit. You just deny their allegations. Very few cases are dismissed on the front end. If a contract has to be included with the complaint, per the rules of procedure, then you can get them. However, remember that is something that can easily be cured (fixed). They can just slap a contract on the complaint after you file your motion and then your motion is moot.

Other than for a clear cut statute of limitations defense, you're probably not going to get the complaint dismissed. A dismissal of the complaint is rare because the burden for the complaint to survive is the court will assume all allegations in the complaint are true. So as you can see, obviously, it's hard to get a complaint dismissed on the front end.

Also, DH gave you what an attorney used in his case, but keep in mind attorney's always argue failure to state a claim. I filed a 18 page federal lawsuit and the other side said I failed to state a claim. It's what lawyers do.

The other ones DH advised you, in my opinion, would not work, but the main thing, and it's huge, to keep in mind is that an attorney used those. The attorney, if they don't win with those defenses, will know how to at least argue them where by their use they are no deemed frivolous. They will know how to argue them enough where it costs the other side time and money responding to them.

My best advice is whatever you put in your answer, just make sure you know what it means and you know how to argue it. If you read old posts you will see where posters come back a month later, after filing something with the court, and then basically ask what they filed means because now they are having to explain it to the court. Not saying you don't know, just advising you to not put anything in your answer that you do not know what it means.

In my opinion, unless a contact is required to be inc with the original complaint, you're not going to get the case dismissed in the early stages.

Good Luck !!

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thanks.

I'm not sure if statute of limitation could be argued this way: the plaintiff has four years from the date of the breach (the last payment date can not exist if there is no written contract.)

Edited by uumars
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thanks. meaning it would better if I just put down 1 affirmative defense that im sure of then? such as lack of standing.

At this point, lack of standing is complete speculation on your part. What will your response be when they ask you in discovery the factual basis for this defense? From what you posted, you are being sued by the original creditor Cap 1, so standing is not an issue. They own the account, they are not a jdb who has to prove ownership.

I'm not sure if statute of limitation could be argued this way: The plaintiff has four years from the date of the breach (the last payment date can not exist if there is no written contract.)

No. The last payment date will exist, and they'll prove it one way or another. It's probably on your credit report, among other places. If it isn't over four years since the date of default, forget the SOL. The OC will have better records, too.

I would suggest you not use any defenses because you do not seem to understand them. Just reserve the right to assert them at a later time.

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Did not even dawn on me until Bruno pointed it out. You're being sued by the original creditor so lack of standing won't be applicable (well it is but not in the powerful way it's used against junk debt buyers).

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I may have been wrong because I googled defenses and found a great article by a California lawyer that gave a huge listing of defenses. He said to include them all in your answer to the court. Everything and the kitchen sink he said.

So I did that. I didn't put them all and I didn't understand many of them but by the end of my case I found that most of them that I used did apply to my case. None of them really mattered in the end because the plaintiff used one of those ccp96's and thats how I won. Sometimes you just have to fight these cases blindly and move along. I had trouble at every turn. the BOP didn't get any action, the arbitration wasn't a go, writing all sorts of briefs and appeals etc etc. Finally things came together tho with alot of help from all the people on this forum.

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Why thank us? You did exactly the opposite of what we recommended. Failure to state a claim upon which relief can be granted? Where? After reading the complaint, is there any doubt in your mind that you are being sued for a credit card debt? That's the legal standard for a complaint, that it puts you on notice as to what you are being sued for. As for lack of standing, that has a specific legal definition, it refers to the injured party having the right of redress in the court system by filing a complaint that statutorily addresses the injury, as Coltfan hinted at in his post. It has nothing to do with owning the account, it goes toward proper party in interest. How do you intend to prove these defenses now that you have put the burden on yourself to do so? It appears that you do not even understand them, never mind having the ability to defend them. I don't mean to beat you up here, but you asked our opinion and you got solid advice. Then you did exactly the opposite.

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I filed lack of standing and Plaintiff has failed to state a claim already..:-(

I also filed a bop.

waiting for the interrogatories now, will keep it updated.

thanks for the help!

Don’t worry. You did a great job.

Affirmative defenses in these cases are hard to allege because the complaints are so devoid of facts. They don’t attach the contract. They don’t attach the assignment agreement. They always use the form complaint and don’t give much information. The affirmative defenses you alleged are fine. If you find during discovery that you have an additional affirmative defense that you would like to allege, you can ask the Court to permit you to do so. Permission is liberally granted.

One defense to keep in mind is the Statute of limitations. Even that is difficult to allege in your answer because they rarely attach the contract and they usually say that everything happened in the last 2 or 4 years. If and when you get a contract, check to see what state law governs. And then check to see what the SOL is in that state. There is a very good California case that generally says you can “borrow” the other state’s SOL. Read the case for further details: http://caselaw.findlaw.com/ca-superior-court/1289969.html

Good luck.

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