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Q: How to answer summons. Would the following strategy work (for settlement)?


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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.)

Mandarich Law Group, LLP

3. How much are you being sued for?

Less than $3500

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

B of A

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)

In Person

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

I believe so

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

The stupid letter above. Sent as a response to their "if you don't respond within 30 days, it's assumed the debt is valid" type letter.

9. What state and county do you live in?

California, San Bernardino County.

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

Not sure, but I'm almost positive we are within SOL.

11. What is the SOL on the debt?

4 years

12. What is the status of your case? Suit served? Motions filed?

CASE ASSIGNED FOR ALL PURPOSES TO DEPARTMENT S37

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.

YES (if the letter above counts for anything)

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?

30 days from 10/23/2012

No questionnaire

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

Pg 1 Summons

Pg 2-3 Facts common to all causes of action

Pg 4-5 First Cause of Action (Breach of Contract) Second cause of action (Account Stated)

Pg 6-7 Letters starting with "I am an attorney licensed to practice....

Pg 8 Certificate of Assignment

Pg 9 Certificate of Service

That's it.

So, my situation is such that I REALLY don't have the time, or the ability to fight this. I'd like to settle this, and have them remove their share of negative credit remarks.

Would sending a general letter of denial, and a BOP work in my favor, when, say, they can't produce sufficient paperwork? I would then speak to them and use the lack of evidence as leverage to try to settle with them, on the terms listed above.

I've asked in another thread, and I was repeatedly assured that I can fight this, and win. The problem is, I am out of the country, and my wife (who is the one named in the summons) just doesn't have the ability to go to court over this. She is very busy with school and internships.

If this is not a good strategy, could someone advise what a better course of action would be? In the reading I've done, I realized that we're going to have to submit an "answer" regardless, or default (which we would rather not do).

Edited by 1stGenRex
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An acceptable answer is just a "general denial" where you simply deny everything. The burden of proving your debt is theirs. 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 of 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.

or you can use this

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

www.courts.ca.gov/documents/fw001.pdf

www.courts.ca.gov/documents/pos030.pdf

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

LIMITED CIVIL JURISDICTION

CACH, LLC

Plaintiff,

vs.

My Name

Defendant

Defendant In Pro Per

TO PLAINTIFF,CACH LLC, AND THEIR ATTORNEY OF RECORD MANDARICH LAW GROUP,LLP

DEMAND IS HEREBY MADE UPON YOU PURSUANT TO Code of Civil Procedure § 454 to furnish this Defendant,"MY NAME", within ten days hereafter, a Bill of Particulars setting forth all items and details of the account on which the cause of action for goods and services sold and delivered of plantiff's complaint is based 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 item or transation, all payments or credits that have been made to the account and any agreement assigning the account at issue to the Plaintiff.

Me In Pro Per

Dated:

Address

BOP is NOT sent to the court. BOP is sent with a PROOF OF SERVICE directly to the LAWYERS OFFICE .

Edited by racecar
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(1) Extends the application of a servicemember’s right to stay court hearings to administrative hearings. It now requires a court or administrative hearing to grant at least a 90-day stay if requested by the servicemember. Additional stays can be granted at the discretion of the judge or hearing official.

Legal and non-legal assistance is available to active duty personnel, military reservists and their families from a variety of

sources. Many problems can be solved by the military unit, the military unit legal office, or another office of the U.S.

government. If you think you have a legal problem, your local bar association lawyer referral service may be able to assist

you. In many areas of the State, local bar associations are sponsoring programs to assist active duty military personnel

and their families. These programs include referrals to volunteer attorneys, legal clinics and speakers willing to make

presentations to military family support groups.

In addition, the Judge Advocate General's (JAG) office serving the military unit that has been deployed has services

available to assist you. To locate the JAG office near you contact:

AIR FORCE 1-703-697-0413

ARMY 1-703-697-3170

NAVY 1-703-325-7928

San Bernardino: (909) 387-5516

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Be advised CA has a borrowing statute, which means you can use the statute of limitations of the original creditor. Bofa is Delaware, 3 year SOL. Check it out. The clock starts when you fail to make a scheduled payment.

The "Facts common to all causes of action" statement includes a date of August 28 of this year.

I very highly doubt that this is even correct, because that would be less than a 60 day late payment (this was filed Oct. 19)....Not something worth suing over just yet. So, would including an affirmative defense statement that is based on SOL be invalid, because of this date?

By claiming an SOL AD, wouldn't we somehow be acknowledging when "payments stopped"? That is to say, that we were making payments on this account, therefore, it is ours?

Am I reading too much into this?

Also as an interesting tidbit, they include a bit about us making payments within the last four years, and state that the the OC is B of A. And that they

(Mandarich) are the assignee of the OC.

I have no idea where this 28 Aug. date comes from, but I imagine that they do not either.

Edited by 1stGenRex
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The "Facts common to all causes of action" statement includes a date of August 28 of this year.

I very highly doubt that this is even correct, because that would be less than a 60 day late payment (this was filed Oct. 19)....Not something worth suing over just yet. So, would including an affirmative defense statement that is based on SOL be invalid, because of this date?

By claiming an SOL AD, wouldn't we somehow be acknowledging when "payments stopped"? That is to say, that we were making payments on this account, therefore, it is ours?

Am I reading too much into this?

Also as an interesting tidbit, they include a bit about us making payments within the last four years, and state that the the OC is B of A. And that they

(Mandarich) are the assignee of the OC.

I have no idea where this 28 Aug. date comes from, but I imagine that they do not either.

Assert the California and Delaware SoLs as affirmative defenses. Doing so does not concede payment, but if you leave them off and later discover that the debt is past the applicable SoL you'll have to go through more work to amend your pleading.

As for August 28, that's either: 1) the date it came to Mandarich, or 2) the date the dart landed on when they were typing up their Complaint.

As always, racecar's advice is sound. I'll add though that, this being Mandarich, they're going to initially deny you a Bill of Particulars, and they're going to cite to Distefano.

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Assert the California and Delaware SoLs as affirmative defenses. Doing so does not concede payment, but if you leave them off and later discover that the debt is past the applicable SoL you'll have to go through more work to amend your pleading.

As for August 28, that's either: 1) the date it came to Mandarich, or 2) the date the dart landed on when they were typing up their Complaint.

As always, racecar's advice is sound. I'll add though that, this being Mandarich, they're going to initially deny you a Bill of Particulars, and they're going to cite to Distefano.

I've found the letter to reply to that citation though ;) Their FIRST cause of action is Breach of Contract.

I really do need more help with the second part of my strategy though. How do I initiate negotiations to

a) Cease further litigation on this matter, and prevent future litigation

B) Settle the account

c) have them remove their share of negative credit items

?

Again, we're not really in a position to be able to fight this. So, if my approach to this is going to lead down that road, I'd rather not do that.

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The only thing I can think of that would fulfill those criteria is to settle with them, which would involve negotiating. I'm afraid that's not really my strength, so all I can offer are some general platitudes. Hopefully someone else here can come up with a much more clever solution than I. Sorry!

I will say though that getting them to remove negative reports from your credit report as part of a settlement is usually pretty easy.

Have you pulled up your wife's credit report yet? It should indicate the last payment made on the account. If that's over 3 years ago, you may have a shot at shutting this down quickly. Of course, BofA's choice of law provisions aren't uniform, so there's no guarantee they were nice enough to pick Delaware or Virginia or some other state with a favorable SoL.

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Again, we're not really in a position to be able to fight this. So, if my approach to this is going to lead down that road, I'd rather not do that.

That's what we do here, we fight these people and we beat them with regularity. If you don't want to fight, just write them a check. I'm sure they'll throw a party after getting over on you, but you won't be invited.

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The only thing I can think of that would fulfill those criteria is to settle with them, which would involve negotiating. I'm afraid that's not really my strength, so all I can offer are some general platitudes. Hopefully someone else here can come up with a much more clever solution than I. Sorry!

I will say though that getting them to remove negative reports from your credit report as part of a settlement is usually pretty easy.

Have you pulled up your wife's credit report yet? It should indicate the last payment made on the account. If that's over 3 years ago, you may have a shot at shutting this down quickly. Of course, BofA's choice of law provisions aren't uniform, so there's no guarantee they were nice enough to pick Delaware or Virginia or some other state with a favorable SoL.

Viewing her CR on Privacy Guard,

I can only see the 24 month payment history, in which, Equifax lists OK as the all the way back to July of 2010

Experian lists No Data until July 2012, and lists it as OK

TU lists nothing at all in the payment history.

I've asked her to see if she can find any info on when the last payment was made.

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Again, we're not really in a position to be able to fight this. So, if my approach to this is going to lead down that road, I'd rather not do that.

That's what we do here, we fight these people and we beat them with regularity. If you don't want to fight, just write them a check. I'm sure they'll throw a party after getting over on you, but you won't be invited.

And I've learned A TON from this place in just the past 24 hours of reading. Unfortunately though, I cannot apply 99-100% of it, because of our situation being what it is. :oops:

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Viewing her CR on Privacy Guard,

I can only see the 24 month payment history, in which, Equifax lists OK as the all the way back to July of 2010

Experian lists No Data until July 2012, and lists it as OK

TU lists nothing at all in the payment history.

I've asked her to see if she can find any info on when the last payment was made.

You can get a more detailed one from any of the three CR agencies for free by going to www.annualcreditreport.com . I recommend trying one of those, if you can.

Although it sounds like the defense is plausible, since no payment has been made in the past two years. Fingers crossed for four!

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Be advised CA has a borrowing statute, which means you can use the statute of limitations of the original creditor. Bofa is Delaware, 3 year SOL. Check it out. The clock starts when you fail to make a scheduled payment.

Ok so I have pulled all 3 credit reports, and 2 of them state the last payment was made in OCT 2009. One of those two specifies OCT 9, 2009.

But one thing that is odd, is that in the account address, there's a Texas address. Does this mean that the 4 year SOL from Texas applies? Or is it still the 3 year SOL from Delaware?

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Delaware. TX has nothing to do with this, probably a payment center they run. If your last payment was 10-2009, the account went into default 11-2009. That means they filed in time.

JUST in time, I'd say. Damn. Ok well I'll have my wife file the response, then I'll see if I can negotiate with them.

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