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Have you won a motion to compel for a bop on account stated/breach of contract?

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I am wondering if there is a case where somebody has won a motion to compel in regards to a BOP where there is both account stated AND breach of contract. 

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I am wondering if there is a case where somebody has won a motion to compel in regards to a BOP where there is both account stated AND breach of contract. 

Maybe you can be the first. I always thought that the BOP was improper for the breach of contract as well but have been informed otherwise.

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I seem to remember a post where they did. and the court was in Ventura I believe.

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a party to a suit cannot abandon a written contract to seek a more lucrative ruling on a quasi contrctual theory..such as account stated

 

Research quantum meruit.

quantum meruit prevents the unjust enrichment of the other party

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You can write the motion to compel on the grounds of breach of contract - what opposing counsel is doing is clouding the issue - they are preying on your ignorance of the law...

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a party to a suit cannot abandon a written contract to seek a more lucrative ruling on a quasi contrctual theory..such as account stated

 

Research quantum meruit.

quantum meruit prevents the unjust enrichment of the other party

awesome! Thanks for the guidance - I will get on it

 

You can write the motion to compel on the grounds of breach of contract - what opposing counsel is doing is clouding the issue - they are preying on your ignorance of the law...

 Okay- that sounds like a good approach as well.....I will be working on my motion over the weekend. Thanks guys/gals? lol ! I soooooo appreciate all the feedback!

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In my case the Plaintiff had the complaint for; breach of contract, money lent and account stated.  I served a BofP and got what I believe to be faulty results back.  I did a couple of Meet and Confer letters even though I believe it isn't required for the BofP.  

I've HELD OFF on the Motion to Compel because I'm personally going to try and use the strategy of filing a Motion(s) in limine later and in the meantime will be doing my own discovery now that I know what the Plaintiff has or in this case what they don't have.

 

You might want to try and reconsider the Motion to Compel on the BofP...  Comments made to me were along the line of why allow the Plaintiff the opportunity to supplement via the motion - why not try and get the issues/docs/evidence excluded?  

At any rate, good luck - I'm right in there with you.

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Prob not, the BOP is improper for account stated and will be objected to. See the DeStefano case.

true...but if they include breech in their claim then they opened the door for BOP

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The authorities that allow the Motion also say that you cannot wait for trial to do it also. Specifically, in the cases which allow the exclusion they have stated that it cannot be sprunf before trial. So moving promptly when it arises makes it more meritorious. Even if it is denied it is best to contest every right they try to take away.

 

My vote would be to do it sooner than waiting because the motion is totally left to the discretion of the court, therefore if you are near trial you know they court will deny it to see the main event but if trial is a long way off the court will be content to make the motion the end of the case.

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I went through with the motion to compel and set a date for soon....I rec'd their opposition to it today and am working on my reply tonight.  My main thread is here - http://www.creditinfocenter.com/community/topic/318018-sued-by-cach-when-do-i-send-bopdiscovery-docs/

 

I'll post an update when the tentative ruling and hearing are over.  Now I'm researching how to do my reply. Thanks for all the responses!

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