Jump to content

Need some help with response to Complaint from CACH LLC, PLEASE! :) (details included)


Recommended Posts

Hi everyone, 

 

*Since it's such a book...I put my questions at the bottom if you'd rather just check those for reference and then skim :razz:**

 

I've got a lot of great information here so I believe I am on the right path and I can get this answered. But...I needed some help on phrasing my responses to their allegations. It seems like there are a ton of great people on here and I only hope that as I move forward in this process I can help others like I've been helped on this great forum!

 

I tried to give some quick and dirty details about my case up top and then listed my allegations from the complaint along with my response emboldened underneath. 

 

ANY AND ALL HELP IS GREATLY APPRECIATED!! I am hoping to submit this tomorrow afternoon as I have a half day. :)

 

A little info....

 

State: California

Me: Employed single young male with no joint accounts or shared assets

Plantiff in my case: CACH, LLC, via Mandarich Law Group, LLP (and I've heard plenty about these folks here)

Demand: A bit more than 5k

Alleged Account: BofA CC

 

How I got sued...

 

Essentially I started getting calls from these guys about me owing them money and wanted my social to verify who I am. Obviously, having no idea who this was, I declined. Eventually, I got a very urgent sounding message from "Mr. XXX" from this organization claiming that a deadline was approaching and I needed to call. I heard the guy out and he said I had a credit card with BofA (which I had at one point, but believed to be paid off) and this is now their debt. I politely asked them to send me validation and some proof that they did indeed own my debt and some proof as to how the arrived at their number. 

 

The gentlemen (haha...not quite appropriate in this case) said I had to give them $3,000 dollars by the next day and had to give him my checking account number today or I was going to be sued.After trying to let them know that I would make payments if they could validate the debt and give me more reasonable terms, to which he declined.  I let them know I would be waiting for my service papers or validation of debt. 

 

I got the service papers first. 

 

Answering my complaint... 

 

Basically, my answer to the complaint is.. I have received no information verifying that I owe these people any money, that this account they are referencing is mine, or any evidence of the contract they are referencing. Thus, I have no ability to verify the amount that I owe, or if they even own a debt they are claiming I owe and I am not willing to give them anything

 

After doing some research I found this form for the California Court System specifically for an answer in breach of contract case in civil court.

 

http://www.courts.ca.gov/documents/pldc010.pdf

 

I understand that formatting a document myself probably looks more professional, but in this case I assumed accuracy trumped appearances.

 

The form lists breaks it down into 4 separate ways to respond to each allegation in the complain. (If you do not list an allegation in one of these sections it is assumed to be TRUE) 

 

A. General Denial - which i don't believe applies due to the circumstances, but I might be wrong. It also says "(do not use) if the verified complaint or cross-complaint demands more than $1,000." - which I don't see a notary stamp nor is there a signature on anything but the summons. 

B1. Defendant claims the following statements are false.

B2. Defendant has no information or belief that the following statements are true, so defendant denies them. 

As most of my response revolves around this denial and the form phrases it well. I'm almost tempted to just list the paragraph numbers in this section and say denied.  

 

I.E. - Allegation #1. - DENIED

        Allegation #4. - DENIED

 

..and just leaving it at that for items that fall into this section. Thoughts?

 

4. Affirmative Defenses .

I don't think this really applies either, but I could be incorrect. 

 

Possibly...

 

Statute of Frauds: No evidence of contract mentioned in this complaint exists. There is no evidence for Plaintiff to bring suit against the Defendant. 

Failure of Consideration: No exchange of money or goods occurred between the Plaintiff and the Defendant.

Lack of Privity: To the best of the Defendants knowledge. No relationship exists or has ever existed contractually between the Plaintiff and the Defendant.

 

First question - Should I use this form? 

 

 

"The Complaint" 

 

I will list my answers under the response along with the bucket I would drop it into if I used the form. 

 

Plaintiff Alleges:

FACTS COMMON TO ALL CAUSES OF ACTION

1. Plaintiff is and at all time herein mention was, a Colorado Limited Liability Company, and assignee of original creditor, Bank of America, N.A..

- (B2. no information on truth) Allegation #1: DENIED. Defendant has no information or belief that the following statements are true, so defendant denies them. 

 

2. Plaintiff is informed and believes that defendants are individuals who currently reside within the jurisdictional boundaries of the above entitled Court. Therefore, this Court is the proper Court for trial of this action. 

- (Not listed/TRUE)

 

3. Plaintiff is unaware of the true names or capacities, whether individual, corporate, associate or otherwise of the Defendants sued herein as DOES 1 through 10 inclusive, and therefore, sue Defendants by such fictitious names. Plaintiff will amend this complaint to show their true names and capacities once ascertained. 

- (Not listed/TRUE)

 

4.  Plaintiff believe that at all times mentioned herein, each of the Defendants was, and is, the agent, servant and employee, employer of each of the Defendants, and also acted in the capacity and as agent of the other Defendants, and also acted in the capacity of and as agent of the other Defendants. Plaintiff also believes that the individual Defendants, and each of them are jointly and severally liable that the actions described herein were taken as actions for the benefit of the Defendants' separate and/or community property. 

- (Not listed/TRUE)

 

5. Plaintiff believe that, for value received, Defendants and each of them, executed and delivered a credit card application to Bank of America, N.A. (Plaintiff's assignor) to made such application for credit over the telephone or Internet. Pursuant to the terms of the application and the written terms and conditions sent along with the credit card, Plaintiff's assignor provided Defendants with a credit card, and granted charge privileges on the credit card, account number XXXXXXXXXXXXXXXXXXX (the "Account")

- (B2. no information on truth) Allegation #5: ADMIT in part. Defendant did at one time have an account with Bank of America, N.A.. DENY in part. Defendant has been presented no evidence that the account I owned is the same "Account" or "credit card" as the debt alleged in this complaint. 

 

6. Prior to the commencement of this action, the Account was assigned for value by Bank of America, N.A. (Plaintiff's assignor) to the Plaintiff is it's current holder. 

- (B2. no information on truth) Allegation #6: DENY. Defendant has no information or belief that the following statements are true, so defendant denies them.

 

7. Defendants agreed to comply with the written terms and conditions governing the use of the Account, as it was amended from time to time, including repaying the Plaintiff's assignor or any charges on the Account including, but not limited to, charges for the purchases of goods and services and/or cash advances and balance transfers along with the interest, late charges, over limit charges related thereto.

- (B2. no information on truth) Allegation #7: DENY. Defendant has no information or belief that the following statements are true, so defendant denies them. This request calls for admission of matter defendant has denied in this complaint and thus it is improper. Defendant has no information on or evidence of the "the account" referenced in this complaint as the debt owed. 

 

8. Defendants used the credit card issued on the Account to make credit card purchases and/or to take cash advances and/or to make balance transfers. Each time the Defendants used the credit card to purchase goods and services and/or to take cash advances and/or make balance transfers, Defendants reaffirmed their agreement to repay Plaintiff's assignor for the amount for the purchase and/or cash advance and/or balance transfer, along with such other charges as may be assessed pursuant to the terms and conditions governing the Account. 

- (B2. no information on truth) Allegation #8: DENY. Defendant has no information or belief that the following statements are true, so defendant denies them. This request calls for admission of matter defendant has denied in this complaint and thus it is improper. Defendant has no information on or evidence of the "credit card" or "the account" referenced in this complaint as the debt owed. 

 

9. Pursuant to the terms and conditions governing the Account, monthly statements were sent to the Defendants which itemized all payments made and charges due on the Account. Defendants have failed, refused and neglected to pay amounts due per the terms and conditions governing the Account. 

- (B2. no information on truth) Allegation #9: DENY. Defendant has no information or belief that the following statements are true, so defendant denies them. This request calls for admission of matter defendant has denied in this complaint and thus it is improper. Defendant has no information on or evidence of the "terms and conditions", "monthly statements" or "the account" referenced in this complaintrequest, so defendant denies it.

 

10. Within the last four years, the Defendants failed to make payments as agreed on the Account. Defendants have failed, refuse and neglected to pay amounts per the terms and conditions governing the account. 

- (B2. no information on truth) Allegation #10 : DENY. Defendant has no information or belief that the following statements are true, so defendant denies them. This request calls for admission of matter defendant has denied in this complaint and thus it is improper. Defendant has no information on or evidence of the "terms and conditions" or "the account" referenced in this request, so defendant denies it

 

11. As of XX-XX-2012, Defendants owe the sum of $X,XXX.XX with interest thereon.

- (B2. no information on truth) Allegation #11: DENY. Defendant has no information or belief that the following statements are true, so defendant denies them. This request calls for admission of matter defendant has denied in this complaint and thus it is improper. Defendant has no information on or evidence of "the account" from which this alleged dollar sum has been derived. This request is vague, and ambiguous, so defendant denies it.

 

12. Although demand has been made upon Defendants to pay said amount, no part has been paid, and it is now due, owing and unpaid together with interest thereon plus attorney's fees. 

- (B2. no information on truth) Allegation #12: DENY. Defendant has no information or belief that the following statements are true, so defendant denies them. This request calls for admission of matter defendant has denied in this complaint and thus it is improper. Defendant has no information on or evidence of the "the account" referenced in this complaint as the basis for affirming this request, so defendant denies it.

 

13. Plaintiff and Plaintiff's assignor have duly performed all promises, conditions and agreements on their part to be preformed. 

- (B2. no information on truth) Allegation #13: DENY. Defendant has no information or belief that the following statements are true, so defendant denies them. This request calls for admission of matter defendant has denied in this complaint and thus it is improper. Defendant has no information on or evidence of the "the account" or "conditions and agreements" the plaintiff referenced in this request, so defendant denies it.

 

14. The terms and conditions governing the Account provides that the accountholder agrees to reimburse Plaintiff's assignor and hence, Plaintiff for the costs and expenses, including reasonable attorney's fees, related to the collection of amounts owing on the Account. Plaintiff has been required to retain the Mandarich Law Group, LLP to pursue collection of the amounts due hereunder. 

- (B2. no information on truth) Allegation #14: DENY. Defendant has no information or belief that the following statements are true, so defendant denies them. This request calls for admission of matter defendant has denied in this complaint and thus it is improper. Defendant has no information on or evidence of the "the account"or "terms and conditions" referenced in this request, so defendant denies it

 

It was my understanding that I really didn't need to respond to items 15 - 19, or subset 1-6 as the are not allegations. Is this correct? 

 

FIRST CAUSE OF ACTION

 

15. Plaintiff refers to and incorporate paragraphs 1 through 14.

 

16. Defendants have breached the terms and conditions governing the account by failing to pay amounts due and owing on the Account. 

 

17. As the direct and proximate results thereof, Plaintiff has been damaged in the amount of $X,XXX.XX plus interest thereon.

 

SECOND CAUSE OF ACTION

 

18. Plaintiff refers to and incorporates paragraph 1 through 17. 

 

19. Within the past four years, an account was stated in writing in which it was agreed that Defendants were indebted in the amount of $X,XXX.XX. Although demand has been made upon Defendants, no part of said amount has been paid, and it is now due, owin and unpaid from Defendats to Plaintiff with interest thereon from and after March 09, 2012.

 

        WHEREFORE, Plaintiff prays for judgement against Defendants, and each of them, as follows:

 

        1. For the damages and money in the sum of $X,XXX.XX

        2. For interest thereon at 10 percent per annum from on and after march 09, 2012; 

        3. For reasonable attorney's fees;

        4. For costs of suit incurred; and

        5. For such other and further relief as the court deems just and proper;

        6. Plaintiff remits all damages in excess of the jurisdictional amount of this Court. 

 

- SIGNED -EVIL BAD JDB LAWYER, ESQ.

 

 

At least on the CA Courts Form, I can then ... 

 

1. Fill in anything as "Other" that I want to add. 

 

- I am choosing to put nothing/not add anything else if I format it myself.

 

2. Defendant Prays for...

 

      A. nothing

      B. for costs of suit

      C. other... (specify)

 

I was just going to check the box for "cost of suit", or put something like...

 

Defendent has been forced to pay court fees under hardship to be heard in this Court for a debt of which the Plaintiff has provided no evidence of Defendant's liability.  

 

WHEREFORE, Defendant prays for judgement against Plaintiffs, CACH LLC,  and all other parties acting as Plaintiffs of this complaint, as follows:

 

1.  For cost of suit incurred; and

 

2. For such other and further relief as the Court deems just and proper. 

 

 

---------------------------------------------------------------------------------------------------------

 

So.... I have a few major questions...

 

1. Should I use the form? Advice or links to an answer formatted for Superior Court of California if I should do it myself? 

2. If I should use the form, would you recommend I simply list "Allegation #X: DENY" within it's respective box and be done with it?

3. HOW ARE MY RESPONSES TO THEIR REQUESTS? (The biggie!)

4.  Do I need to respond to their causes of action?

5. Any thoughts on other or my Pray to the Court?

 

 

I really appreciate any and all help. I think it looks...ok. But, I could definitely use some fine tuning from you fine folks before I send it off to the Court and the scummies :razz:

 

 

THANK YOU SO SO SO SO SO SO MUCH IN ADVANCE FOR ALL YOUR HELP, HOPEFULLY READING THROUGH MIGHT HELP SOMEONE ELSE DEALING WITH THESE BOTTOM FEEDERS LIKE ME :) 

Link to comment
Share on other sites

Number 5 should be deny because if you are saying this referenced account is not yours then the fact that you may have had another account would not figure into this you are reading to much into that where you are thinking it into two parts ie: You had a bank account with BofA. You had an account with this account number. you should be thinking along this line "you had a BofA account #XXXXXXXXXXXXXX". The fact that you may have had business before with BofA is not a part of this because BofA is not suing you Mandrich is.

 

So #5 deny..........on lack of information........yada

Link to comment
Share on other sites

Changed it to...

 

 

5. Plaintiff believe that, for value received, Defendants and each of them, executed and delivered a credit card application to Bank of America, N.A. (Plaintiff's assignor) to made such application for credit over the telephone or Internet. Pursuant to the terms of the application and the written terms and conditions sent along with the credit card, Plaintiff's assignor provided Defendants with a credit card, and granted charge privileges on the credit card, account number XXXXXXXXXXXXXXXXXXX (the "Account")

- (B2. no information on truth) Allegation #5: DENY. Defendant has been presented no information or evidence of the "Account" or "credit card" as the debt alleged in this complaint. 

Link to comment
Share on other sites

  • 3 weeks later...

Hi CACHStrapped.  Looks like we're on the same path, but different law firm representing CACH.  I'm getting really great suggestions and examples here.  CACH does not seem to have the original signed contracts, but have some affidavit of sales by some "Bank Officer" that is notarized (looks like a robo-signed job by plaintiff), and some sort of final statement and pages of standard terms and conditions.

 

I just filed my answers to RFA, RPD, and interrogatories.

 

Good luck.

Link to comment
Share on other sites

You can use the general denial form if the complaint is not verified (your complaint does not appear to be verified), and you can add affirmative defenses to it as well. Send them a BOP and learn about discovery so you can send that next. I would stop talking to them on the phone as well, you will have to speak to them later, but talk only to the lawyer (and carefully).

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.