Help Please Fighting Bogus Car Loan Case in California

[Calcarcase]

Hi all, Great Forum!

Have spent the last two weeks of waking hours perusing this forum (lurking) to glean information I could use to fight this bogus case. Here's the scoop...

I cosigned (I Know:oops:) on a car loan for my 18 year old daughter back in 2006 for $15,000 She was fully insured including a Gap insurance policy from the dealer. She made payments on time until Aug. 6th 2008 when she totalled her car. She was uninjured but she missed a payment. She followed up in Sept. with a payment on the 4th which was returned to her by the bank that rides around in a stagecoach. Fast forward...toHalloween 2012 rec'd summons dropped at front gate notifying me of a lawsuit for $2000.00

1. Who is the named plaintiff in the suit?

Myself and Does 1-10

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)Fancy Orange County California collection Atty.

3. How much are you being sued for? 2000.00

4. Who is the original creditor? (if not the Plaintiff)Horse drawn carriage Bank.

5. How do you know you are being sued? (You were served, right?) Not officially yet.

6. How were you served? Left at gate.

7. Was the service legal as required by your state? Not yet

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

9. What state and county do you live in? L.A. CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Daughter last payed July 10, 2008

11. What is the SOL on the debt? 4 Years.

12. What is the status of your case? Complaint filed.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes Both.

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 also case and desist.

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?

They are claiming Breach of contract, open book account, account stated.

They also claim that I may be served at my physical address (Not true. Don't receive US Mail here. Have PO Box.)

They claim that car was unable to be repossessed.

They claim that "On or about 11/12/2008 Defendant breached...blah blah blah...Thus lender declared full balance due and payable."

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

They attached an unreadable Vehicle Sales Contract and a fabricated "Assignment of Installment Contract" Isay fabricated because it purports to be signed by an Agent of "Buggywhip Bank" but is actually rubber stamped by a V.P. of Collections who used to work for ASSet asseptance and now works at a JDB who shares a building with the JDB suing me.

It seems like an open and shut case for me, as I have daughters bank statement and my credit report to back up the SOL argument, but in preparing my answer, I had some questions.

Do I file a motion for dismissal?

or Demurrer?

or answer General Denial with SOL affirmative Defense?

All three?

In what order?

I realize some of you could have fun with this vis a vis a Federal FDCPA, but to me it's a challenging learning experience.

Thanks for any and all input.

[skippy1960]

It seems like an open and shut case for me, as I have daughters bank statement and my credit report to back up the SOL argument, but in preparing my answer, I had some questions.

First there is no such thing as an open and shut case. Remember you are new to this and the folks on the otherside do this all day long and make substantial money doing so.

Also be aware that dealing with the court system is as much about the Civil Procedure as it is getting your "open and shut case" evidence before a trier of fact.

Do I file a motion for dismissal?

or Demurrer?

No and No, you should file an answer to the complaint. You will pay a first paper filing fee in the amount of around $250 bucks. Might as well save yourself some time and just file the answer denying their claim.

You can use PLD-010 from the California Goverment forms.

Based on what you have written use (2) affirmative defenses- Lack of Standing and Statute of Limitations.

Once you have filed and served your answer on them, I would include a Bill of Particulars based on CCP 454. If you have been reading and lurking you should know what this is.

Lastly, begin to review California Rules of Civil Procedure and your Rules of Court for you county. Justice moves slowly in California, but you need to stay ahead of your case. This means unless you have a paralegal that will be preparing all of your filings, it will take you much longer to complete legal tasks than the copy and paste your Plaintiff will be using.

Point being don't think you can pound out a filing the day before it is due, leave plenty of time to accomplish things.

[BrunoTheJDBkiller]

No insurance on the car?

[Calcarcase]

Thanks for the reply Skippy.

No I don't take this lightly at all and plan to be proactive.

My drafted General Denial contains these affirmative defenses.

1) Plaintiff lacks standing.

2) The alleged debt is time barred.

3) 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.

So ignore the improper service and file answer anyway? My issue is that I cannot receive mail at my house..only at my PO Box. How am I to be served notice of court proceedings? I do have the court website available that summarizes proceedings. I'm afraid of being blindsided.

[Calcarcase]

No insurance on the car?

Fully insured and gap insurance paid off too. Apparently left 2000.00 owing, I don't know since I have no standing with the insurance company. It's been four years any way. Also shouldn't I have been notified of defaulted payments as cosigner? Does the creditor need to provide proof of notification?

[skippy1960]

So ignore the improper service and file answer anyway? My issue is that I cannot receive mail at my house..only at my PO Box. How am I to be served notice of court proceedings? I do have the court website available that summarizes proceedings. I'm afraid of being blindsided.

The real fight is winning the case. Some like the idea of fighting service, when it is outside civil procedure. While you may win this battle, not likely to slow down the war. They simply need to serve the complaint again, so all that really happens is time is wasted.

Don't get me wrong, if I had little chance of winning the case. Meaning it was an OC, that is local and likely to easily provide a witness and the amount was sizeable, then fight every little detail.

The way you have described the facts are you have a solid information as to the last payment date, which determines the start date of the breach of contract claim. They have filed there suit after that date by 4 years, making the claim outside the SOL.

Point is concentrate on winning the overall war, there are plenty of battles to win along the way. Imporper Service isn't one of them in your circumstance in my opinion.

Also don't rely on the mailed notifications to know what is happening to your case. I keep an eye on the online dockets when I have a case, phone call to clerks office with quesitons, and finally show up even if you think you may not need to.

This is your case so you can choose. Best of Luck.

[Calcarcase]

Thanks Skippy for the advice.  I followed it and answered the complaint.  Followed up with request for Bill of particulars.  By the way, anyone know how to address documents being served to Plaintiff or to the lawyer?

In a fit of paranoia, I typed up a Notice of Defendants Proper Address because the court form change of address doesn't apply.  I'm worried since I wasn't served properly, that I won't receive filings from the defendant.  This is the best solution I could concieve...

 

                         Plaintiff,

            vs.

 

                         Defendant

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Case No.: xxxxxxx

 

Notice of Defendant’s Proper Address

 

TO PLAINTIFF, xxxxxxx, L.L.C., AND THEIR ATTORNEY OF RECORD xxxxx LAW:
Wherein this defendant has yet to be formally served the summons in this case, and has yet to receive any mailings, requests or notices from the Plaintiff or the court, Defendant hereby requests that Plaintiff take notice of Defendant’s proper mailing and service address.  Defendant does not receive mail at his Residence.  I may be served at my P.O. Box via U.S. Postal Service, or electronically at [email protected].

Mailing Address: 

P.O. Box 1111

anytown,  CA  99999

Residence Address:

11111 main Steet East

Anyothertown,  Ca  99992

Dated this etc...

 

 

 

 

 

I also filled out a form of consent to electronic service.

Good or bad idea.... or meaningless?

[1stStep]

Nope- that notice isn't worth the paper it's printed on - if you actually read CCP 415, you can't be served by mail unless you're being sued in small claims claims court. My guess is that this is a Rule 3 Collections case - so they have to serve you in one of the methods according to CCP 415. 

 

As such, they have to serve you personally or they can serve you by publication - meaning all your business is gonna be in the street, because they will serve you by publishing it in the paper!!!!

 

 

If you were not served properly, you need to file a motion to quash service. The judge will then decide if you were properly served.

[Calcarcase]

CCP 415 is regarding service of summons.  Skippy earlier had just suggested that I concentrate on the case as opposed to fighting service.  Plus I didn't want to default so I answered.  The court docket shows service of summons filed as to defendant.  Is it worthwhile to or even feasable to quash service?

 

Still the problem remains that any mailings may not reach me and I could be late responding to an Motion for Summary Judgement for example.

 

I will research motion to quash service a little more.  Thanks 1st Step

 

Isnt the fact that answered the complaint equal to having appeared voluntarily and therefore to late to quash?

[rte]

I've never dealt with SOL, but here's a case where the defendant filed a cross-complaint for a time-barred debt.  The case number is 515719, and the link is:

 

http://webaccess.sftc.org/scripts/magic94/Mgrqispi94.dll?APPNAME=IJS&PRGNAME=casenumberprompt22

 

You should also look at case number 516322.  The defendant develops a SOL defense in the trial brief, although defendant did not file a cross-complaint. 

 

The first case looks complicated and the court hasn't come up with a judgment yet.  In the second case, there was a dismissal with prejudice. 

 

[Seadragon]

CCP 415 is regarding service of summons.  Skippy earlier had just suggested that I concentrate on the case as opposed to fighting service.  Plus I didn't want to default so I answered.  The court docket shows service of summons filed as to defendant.  Is it worthwhile to or even feasable to quash service?

 

Still the problem remains that any mailings may not reach me and I could be late responding to an Motion for Summary Judgement for example.

 

I will research motion to quash service a little more.  Thanks 1st Step

 

Isnt the fact that answered the complaint equal to having appeared voluntarily and therefore to late to quash?

Motion to quash will be denied you submitted to jurisdiction by answering. anywhere in the country that is the way it is. You seem to have much better argument because how can the gap insurance not cover the gap again? also the sol issue is going to be the deciding thing. I would file a counter claim for time barred debt if they don't dismiss within 21 days then bingo then you can push them for more than 2k in damages.

[Calcarcase]

Thanks for the links rte.  It appears in that 2nd case that the Plaintiff dismissed without prejudice.

 

You are spot on, Seadragon.  Gap insurance means Guaranteed Asset Protection.  Plus recently I found out I missed a $6million class action settlement against Buggywhip Bank because they improperly notified auto loan debtors before repo.  Additionally at the time Horse drawn bank layed off hundreds  in their auto loan division, which is probably why my daughter could not deal with them at the time.  She said "They just pissed me off" or words to that effect.  I feel like dragging everybody into court to sraighten this out.

[rte]

You're right.  It was dismissed without prejudice.  I need to learn to type.

[Calcarcase]

Requests for Admissions

 

Each of the following facts are true:

 

1. Admit that on or about Nov. 8 2006, YOU (“You” and “Your” shall mean and refer to Defendant, CALCARCASE, and any dependants, and/or any other person acting or purporting to act on behalf of Defendant, CALCARCASE), entered into a contract with ORIGINAL CREDITOR (“Original Creditor” shall mean and refer to STAGECOACH BANK, NA, and any dependants, and/or any other person acting or purporting to act on behalf of STAGECOACH BANK NA.) for the financing and purchase of the VEHICLE (“ VEHICLE” shall mean and refer to 2004 Honda Civic Bearing VIN JH245xxxxxxxxx)

 

ADMIT? I did, however the contact provided is in tiny tiny type and barely legible.  Should I fight this?

(All of the following use this same format defining “YOU” and “YOUR” every time).

 

1. Admit YOU signed the contract.

ADMIT? I did.

1. Admit contract is genuine (attached)

DENIED  Calls for legal opinion?

1. Admit that within the past 4 years  YOU failed to make payments thereby breaching the terms of the contract attached hereto as EXHIBIT A.

DENIED  Further explanation necessary?  Does deny making payment equate to admitting not paying them.?

1. Admit YOU have not paid the outstanding deficient sum.

DENIED  Further explanation necessary?

1. Admit CREDITOR suffered damages.

DENIED

1. Admit YOU did not notify PLAINTIFF (JDB) of any dispute prior to inception of this suit.

DENIED.  Sent DV letter CMRR

 

1. Admit YOU are indebted for the full amount claimed plus interest at the rate 17.99%.

DENIED.  Calls for legal opinion.

 

Also the definition of YOU includes dependants, which is not defined.  Do I answer on behalf of my daughter here?  My daughter was 20 and not a dependant in any sense of the word.

 

Also served 11 interrogatories and 6 RFPODs  and 6 Form interrogatories.  Should I name my daughter as an interested party as requested?  And is it advisable to send them her 2 years of bank statements which show no payments after SOL ran out? Is it advisable to provide My credit reports that show the same and show the debt as disputed?

Kind of stressing.

I did receive a further elucidation via their response to my BOP.  In addition to the illegible contract and phony bill of sale to JDB they provided a spreadsheet listing the ACCT no., our names, date and amount of each payment, sale proceeds (from insurance), a payment reversal and a final “payment” within the SOL that is seemingly all of daughters extra payments applied.  Also the Charge off amount.  Is this response deficient?

 

Apologize for all the questions but any answer would be encouraging cause I'm buried.

[skippy1960]

Cal Car,

Below are some possible resposnes to your RFA's. These assume you have typed the questions accurately and taken short cuts. Words matter in the legal world. Based on that and assuming the contract supplied is un-readable these would be my responses.

Requests for Admissions

Each of the following facts are true:

1. Admit that on or about Nov. 8 2006, YOU (“You” and “Your” shall mean and refer to Defendant, CALCARCASE, and any dependants, and/or any other person acting or purporting to act on behalf of Defendant, CALCARCASE), entered into a contract with ORIGINAL CREDITOR (“Original Creditor” shall mean and refer to STAGECOACH BANK, NA, and any dependants, and/or any other person acting or purporting to act on behalf of STAGECOACH BANK NA.) for the financing and purchase of the VEHICLE (“ VEHICLE” shall mean and refer to 2004 Honda Civic Bearing VIN JH245xxxxxxxxx)

This party objects to this request on the grounds that Request for Admission #1 contains subparts, or a compound, conjunctive, or disjunctive question in violation of Code of Civil Procedure section 2033.060 subdivision (f).”

Based on the foregoing objections this party Denies to this Request for Admissions #1. Discovery is ongoing and this party reserves the right to amend and supplement this response as necessary.

2. Admit YOU signed the contract.

This party objects to this request on the grounds that Request for Admission #2 it is vague and ambiguous as to the term “contract”; it calls for a legal conclusion; it assumes facts not in evidence. Further the attached Exhibit _ , is not legible or readable which this Request for Admission is based upon.

Based on the foregoing objections this party Denies to this Request for Admissions #2. Discovery is ongoing and this party reserves the right to amend and supplement this response as necessary.

3. Admit contract is genuine (attached)

This party objects to this request on the grounds that Request for Admission #3 it is vague and ambiguous as to the term “genuine”; it calls for a legal conclusion; it assumes facts not in evidence. Further the attached Exhibit _ , is not legible or readable.

Based on the foregoing objections this party Denies to this Request for Admissions #3. Discovery is ongoing and this party reserves the right to amend and supplement this response as necessary.

4. Admit that within the past 4 years YOU failed to make payments thereby breaching the terms of the contract attached hereto as EXHIBIT A.

This party objects to this request on the grounds that Request for Admission #4 contains subparts, or a compound, conjunctive, or disjunctive question in violation of Code of Civil Procedure section 2033.060 subdivision (f).

Based on the foregoing objections this party Denies to this Request for Admissions #4. Discovery is ongoing and this party reserves the right to amend and supplement this response as necessary.

5. Admit YOU have not paid the outstanding deficient sum.

This party objects to this request on the grounds that Request for Admission #5 is vague and ambiguous as to the term “outstanding deficient sum”; it calls for a legal conclusion; it assumes facts not in evidence.

Based on the foregoing objections this party Denies to this Request for Admissions #5. Discovery is ongoing and this party reserves the right to amend and supplement this response as necessary.

6. Admit CREDITOR suffered damages.

This party objects to this request on the grounds that Request for Admission #6 calls for a legal conclusion; it assumes facts not in evidence.

Based on the foregoing objections this party Denies to this Request for Admissions #6. Discovery is ongoing and this party reserves the right to amend and supplement this response as necessary.

7. Admit YOU did not notify PLAINTIFF (JDB) of any dispute prior to inception of this suit.

This party DENIES Request for Admission #7. Defendant disputed Plaintiff’s claim on by written correspondence.

8. Admit YOU are indebted for the full amount claimed plus interest at the rate 17.99%.

This party objects to this request on the grounds that Request for Admission #8 it is vague and ambiguous as to the term “full amount claimed”; it calls for a legal conclusion; it assumes facts not in evidence related to any interest rate.

Based on the foregoing objections this party Denies to this Request for Admissions #8. Discovery is ongoing and this party reserves the right to amend and supplement this response as necessary.

[skippy1960]

1. Also the definition of YOU includes dependants, which is not defined. Do I answer on behalf of my daughter here? My daughter was 20 and not a dependant in any sense of the word.

2. Also served 11 interrogatories and 6 RFPODs and 6 Form interrogatories. Should I name my daughter as an interested party as requested? And is it advisable to send them her 2 years of bank statements which show no payments after SOL ran out? Is it advisable to provide My credit reports that show the same and show the debt as disputed?

Kind of stressing.

3. I did receive a further elucidation via their response to my BOP. In addition to the illegible contract and phony bill of sale to JDB they provided a spreadsheet listing the ACCT no., our names, date and amount of each payment, sale proceeds (from insurance), a payment reversal and a final “payment” within the SOL that is seemingly all of daughters extra payments applied. Also the Charge off amount. Is this response deficient?

See Answers below:

1. You are not allowed to answer for your daughter, only she can answer. If she is not party to the suit and was never a minor during this transaction, she is on her own. If she is not party to the case and you bring her name up she will be as they will add her as a defendant. That is the Does 1-10 part of your summons/complaint. It says there maybe others we add later...

2. Answer 1 covers your daughter, very hard to answer without seeing the Interrogatories and RFP's, regarding what to supply or not to supply. Generally, I would give then as little as possible. Anything you supply opens more doors. They brought the action and they need to have the documents neccessary to make the case. Remember answering discovery is based on answers given at the time of answer. 6 months from now if you need to supplement your response you may do so.

3. It sounds as though they may have met the BOP, if you have all the transactions for the entire book. Although you may want to send a meet and confer, discussing the fact that the contract is not readable. This would keep them busy for a bit.

Finally, I sent you a PM...

Apologize for all the questions but any answer would be encouraging cause I'm buried.

[Calcarcase]

Form interrogatories:

112.0  State the name, address, and telephone number of each individual who has knowledge of the facts relating to the incident, and specify his or her area of knowledge.

 

I don't mind dragging my daughter into this and in some ways-  they would need to subpeona (summons?) her and might make it more complicated for them.

I just dont know if I can realistically deny that my daughter is a non party.

  115.2  State in detail the facts upon which you base your contention that you are not responsible, in whole or in part, for plaintiffs damages.

  Wow...these are state sanctioned questions...Do they want me to plead my case here?  Is it wise to lay out my defense here and tell the plaintiff why they have no case?   I imagine you shouldn't object to these.  Maybe I should form an alternative defense as a red herring.  A trail brief here would be overkill, but if it's airtight could make them go away???!!!

[skippy1960]

Do they ask the same request in their written interoggatories as the do with the Form #112.0?

I do think you may eventually, have to give up this information.

Short answer to 115.2

Defendant answered complaint using the the following affirmative defenses "Plaintiff Lacks Standing", "Complaint is time Barred by SOL" and should the Plaintiff actually meet their burden of proof defendant will be prepared to present a defense.

Now there is more to the answer that this, but should give you some ideas....

[Calcarcase]

No they do not ask this question anywhere else in their special interrogatories.  I will try to sidestep answering for now. 

I like the answer to "What is your defense?"  I still have three weeks to respond and I will be sure to hone all answers before submitting them.  I also have been working on some very pointed questions for them....

Thanks again.

[skippy1960]

No they do not ask this question anywhere else in their special interrogatories.  I will try to sidestep answering for now. 

I like the answer to "What is your defense?"  I still have three weeks to respond and I will be sure to hone all answers before submitting them.  I also have been working on some very pointed questions for them....

Thanks again.

Consider how much time you are spending attempting to not give much away in answering their Discovery. So spending a great deal of time coming up with 35 discovery requests, will leave you dishearted. They will give you what you are attempting to give them.

Point is send a small amount of discovery, directed at making your case, very specific. That way if you have to MTC responses it is easier to handle. MTC discovery is no easy task, very time consuming process.