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Hi Everyone,

 

I know this forum when I did the research on how to answer the interrogatories from CACH, LLC.  I have been here almost two weeks to read as much as I could in order to prepare for my case.  However, there are some questions that I don't know how to answers correctly in the legal term. Therefore, I decide to open my own thread to get some advice to deal with this legal issue.  Thank you All for your help (CALawyer, SeaDragon, ColtFan, Helpme, Big Sister is Watching, Rivertime,...) and all others.

 

This is my case:

 

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 LLC

3. How much are you being sued for?

    - $3000 +

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

    - Bank of America

5. How do you know you are being sued? (You were served, right?)

    - Summon served

6. How were you served? (Mail, In person, Notice on door)

    - To my roomate (he got his own, same JDB / Lawyers only different date to court, 2 weeks after my case.)

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

    -  Yes

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

    - None

9. What state and county do you live in?

    - California, Santa Clara

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

    - I believed 2009 / 09

11. What is the SOL on the debt?

    - 4 years in California

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name)

    - Summon filed: served 10-28-2012
    - General denial (Plc-010 form) Answer filed: 11/28

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, I received three documents (and it is funny that my friend also receive exactly the same documents from same law office for the same JDB, only different account number and who signed them.  He will share with my case, instead of posting separate :)

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.

    - 30 days and I already filed general denial (PLD-C-010) and counter claim for court cost.

16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or on an open book account, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.

    - Breach of Contract, Common Counts, Account States

 17. Is the complaint "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.

    - No.  The complaint is not verified.

18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

    - Yes, they are the same as 1111girl post (307271-help-answering-discovery) with more questions added that I will need some guidance to reply to them.

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

There is no evidence with the summon.  However, when I asked for the DV before sued, they sent me these copies:

    - Summary Statement Of Account Balance Purchased: with JDB, BoA account number and the amount.

    - Certificate Of Assignment: where one of the JDB employee authorized to give the certificate with sufficient personal knowledge to do so that account was mine, issued by CO with account number,  and CACH now is owner with amount and interest added.

    - Business Records Affidavid: where the same employee stated under oath (notarized by someone in Colorado) that these documents are the original or exact dupplicates of the original.

    - Account Information Report: where the account number of CACH, DEBT PROVIDER, Original Creditor Accct are provided and Debtor information provided (name, address, last payment date...)

    - Bank of America Bill of Sale and Assignment of Loans: Signed by someone at FIA Card Services, N.A (Seller/Assignor) and someone at CACH for Buyer/Assignee.  This includes a bank statement that CACH claims the last statement from BoA sending to me and the final amount of money that they sue me in court.
 

I made mistake to sit on these interrogatorries to long and on the last leg to reply this Friday.  I will post all the questions in next posts.

 

Thank you

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This is what I have done so far:

 

- Talked to them couple times to offer the settlement at 15% in payments; but they want 70%. I stopped.

 

- BOP sent to plaintiff same day I filed the answer (11/28) and no answer (I assume that they already sent documents when I asked for the DV. Those documents they sent when I requested the DV are listed in the answer for question 19 above.)

 

- Received the interrogatories on 01/19/2013 through USPS mail.

 

- Send to Mandarich LLC the Meet-and-confer letter on Feb 8, 2013 to demand for more paper that they don't answer when I sent the BOP.  They do not answer yet.

 

- Due date to reply the interrogatories this Friday, 02/22/2013.  I plan to send on Thursday 2/21/2013 and work on my own discovery to send to them since I don't really know how to. I may have to use the disc-004. Even though in 1111girl post, she recommended to send the discovery before answering JDB's interrogatorries.

 

Also, I have gone through these posts to get the idea :)

 

a. Have read the standing issue from this post in community, topic: 312714-standing-when-dealing-with-jdb/

b. Have read the generic fighting JDB from this post in community, topic (Meli): 314722-generic-steps-to-fighting-jdb-in-ca/

c. Have read how to answer the JDB integatories from this post in there-lawyer-house forum, topic (1111girl) there-lawyer-house/307271-help-answering-discovery-stay-home-mom-sued-cach-llc-california.html

d. Plan to read some case law from SeaDragon - DocDon from this post in community, topic: 228720-case-law-add-yours-to-this-post

 

e. Went through some WINNING posts here to pop up my hope, my strenght to deal with these JDB's lawyers



 

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This is the REQUEST FOR ADMISSIONS. This RFA is exactly the same with 1111girl; except I have three more questions (4, 6, 7) that I am not sure how to answer.  I read Broke in GA, 1111girl and ASTMedic posts to get the ideas and plan to modify them to use in my answers (if Big Sister is Watching, 1111girl and ASTMedic are not "object", thank :):

 

 

1. Admit that Original Creditor, BoA, issued you the Account xxxxxxxxxxxxxxxxxxxxx which is the subject of this lawsuit.

2. Admit that you used said account (for purchases, cash advances...)

3. Admit that you and original creditor entered into an agreement regarding the account.

4. Admit that you agreed to pay OC and its successors and assigned all outstanding balances owed on the account

5. Admit that Original Creditor mailed monthly statements to you regarding your account.

6. Admit that you received a final statement on or around 4/30/2010 from OC with an balance of $3000+

7. Admit that you never disputed, with any person or entity including the OC, the final statement with an balance of $3000+

8. Admit that you have not paid the outstanding balance on said account.

9. Admit that you owe the Plaintiff the amount prayed in the Complaint.

10. Admit that you have no facts that would vary the amounts owed to Plaintiff.

11. Admit that you have no affirmative defenses against the Plaintiff's complaint.

 

This is my copied answer; please let me know if they are appropriate:

 

        NO. 1: DENIED to the extent that no application, contract with defendant’s signature was 

attached hereto for evaluation.
        NO. 2: DENIED to the extent that no admissible evidence establishing use of the unproven 
account was appended hereto for evaluation.
        NO. 3: DENIED to the extent that no evidence establishing Bank of America and defendant 
had entered into agreement regarding to the ACCOUNT was appended hereto for evaluation.
        NO. 4: DENIED to the extent that payments to the original creditor on the alleged 
ACCOUNT, are immaterial, that it has no bearing on the instant action, the purpose of which is to 
establish that CACH, LLC now owns said ACCOUNT and is entitled to collect, a fact which is yet 
unproven.
        NO. 5: DENIED. Defendant has no proof of the delivery has been provided and plaintiff has 
not provided any admissible proof up to now to the defendant to establish that the original creditor 
had sent monthly statements to the defendant.
        NO. 6: DENIED. Defendant has no recollection of receiving any statements from Plaintiff, 
nor has proof of the delivery been provided to prove that the said amount is the correct.
        NO. 7: DENIED. Defendant objects to this Request for Admission on the ground that there 
is no admissible evidence was attached hereto which would allow defendant to make an informed 
response. 
         NO. 8: DENIED. Defendant objects to this Request for Admission on the ground that there 
is no admissible evidence was attached hereto which would allow defendant to make an informed 
response.
         NO. 9: DENIED. Defendant objects to this Request for Admission on the ground that there 
is no admissible evidence was attached hereto which would allow defendant to make an informed 
response.
         NO. 10: DENIED. Defendant objects to this Request for Admission on the ground that 
there is no admissible evidence was attached hereto which would allow defendant to make an 
informed response.
        NO. 11: DENIED. 

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I would re-word rfa # 6. Maybe just put denied. Proof of delivery would not prove any amount. And I would want to object to the amount alleged due or any other amount. You are saying the said amount may not be correct, but it leaves open the fact that another amount might be due instead, like $2500.

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This is the REQUEST FOR PRODUCTION OF DOCUMENTS. It is almost the same as 1111girl post with one more question (Q6), I think I will use the answer from ASTMedic to reply to them:

 

1. Copies of any and all documents evidencing between You and OC relating to the account.

2. Copies of any and all documents between you and Plaintiff relating to the account.

3. Copies of any documentation evidencing any payments made to Original Creditor on said account.

4. Copies of all and all documents that support the affirmative defenses raised by you in this action.

5. Copies of all documents from you regarding false or factually incorrect claims or statements that you believe were made to various credit reporting agencies about your credit card account.

6. Copies of all documents that support your contention you do not owe the amount claimed in the complaint on file in this lawsuit.

 

My intended answer for those questions are from ASTMedic:

 

Defendant has no such documents in his / her possession at this time. Defendant reserves the right to amend his responses per the rules of civil procedure if such documents become available.

 

Let me know if this works.  Thank you. Also Please bear with me since I try to catch up as much as I could for the last month regarding to the legal terms, procedures, court trial and so on.

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My intended answer for those questions are from ASTMedic:

 

Defendant has no such documents in his / her possession at this time. Defendant reserves the right to amend his responses per the rules of civil procedure if such documents become available.

 

Let me know if this works.  Thank you. Also Please bear with me since I try to catch up as much as I could for the last month regarding to the legal terms, procedures, court trial and so on.

It works.

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This is the SPECIAL INTERROGATORIES:

 

1. State all facts upon which You base your contention that you owe nothing on the account. If you make no such contention do not answer.

2. Describe each document that you believe supports your contention that you own nothing on the account. If you make no such contention do not answer.

3. State all facts upon which you base your contention that you owe less that the amount prayed for in Plaintiffs complaint on the account. If you make no such contention do not answer.

4. Describe each document that you believe supports your contention that you owe less than the amount prayed for in Plaintiff complaint on the account. If you make no such contention do not answer.

5. State each of your affirmative defenses.

6. State all facts upon which you base your affirmative defenses.

7. State each mailing address, if different from your current residence, for the last TEN years that you received mail at.

8. State all facts regarding payments made on the account.

9. Describe each document evidencing payments made on the account.

10. If you have even been married, state the name of your spouse.

11. State all details regarding the length of your marriage, from what date until what date.

 

I really do not how to answer these questions on legal basis.

 

I also don't think that the question 7/10/11 are related to the case. And all these questions are almost exactly with 1111girl; therefore, I think I may just use her answers since I read her posts and it seems to me that she got really good help from everyone in the forum to correct those answers (http://www.creditinfocenter.com/community/topic/307271-help-answering-discovery-stay-at-home-mom-sued-by-cach-llc-in-california/)

 

I will work some more on these questions and post here to get the feedback before sending to the Plaintiff's lawyers.

 

Thank you all for your guidance

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There are some questions that I would like to ask, please point me to the right direction:

 

1. Do I have to send these reply to JDB with POS?

2. Do I have to verify (notarize under oath) these answers before sending to them?

 

Thank you,

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Thank you, racecar and anon amos.

 

From what I understand from the CCP2030, I have to send with POS and answer under oath that I tell the truth by using a paragraph like this:

 

"The undersigned has reviewed the attached responses to form interrogatories and hereby declares under the penalty of perjury under the laws of the State of California that they are true and correct. Executed this 14th day of February 2013 at Milpitas, Ca."

 

Then sign it.

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I also read CCP 2031 / CCP 2033 try to find out how many days I have to respond to the discovery.  The CCP 2031 for RFPD says 30 days with 5 days extra if received by mail while the CCP 2033 for RFA says nothing about 5 days extra. I still look for the CCP for the special interrogatories.

 

Anyone could let me know which one I have to use? (30 days or 30 days + 5 days extra if received by mail)

 

Thank in advance

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Thank you, racecar and anon amos.

 

From what I understand from the CCP2030, I have to send with POS and answer under oath that I tell the truth by using a paragraph like this:

Yes send a POS with the discovery

"The undersigned has reviewed the attached responses to form interrogatories and hereby declares under the penalty of perjury under the laws of the State of California that they are true and correct. Executed this 14th day of February 2013 at Milpitas, Ca."

 

That would probably work. What you are supposed to do is attach a page to the end of the discovery request  called a "Verification" that would read something like:

VERIFICATION

CACH V KICKJDB

      I am the defendant in the above entitled action. I have responded to the plaintiff's discovery request and know the contents thereof; and I certify that the response is true of my own knowledge, except to those matters which are stated upon my information or belief, and as to those matters I believe them to be true.

      I declare, under penalty of perjury, under the laws of the state of California, that the foregoing is true and correct and that this verification is executed this................................2013, at................................, California

....................................(signature)

 

 

Something like that.

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I also read CCP 2031 / CCP 2033 try to find out how many days I have to respond to the discovery.  The CCP 2031 for RFPD says 30 days with 5 days extra if received by mail while the CCP 2033 for RFA says nothing about 5 days extra. I still look for the CCP for the special interrogatories.

 

Anyone could let me know which one I have to use? (30 days or 30 days + 5 days extra if received by mail)

 

Thank in advance

All of the discovery request are due 30 + 5 (for mail). Start the count down from the day they were put in the mail (served to you). It is good that you are working on them right away, but, you do not need to send them to them early. What I would do is send them your own set of discovery as well. Request for production of documents. If you sent them your discovery first, they will get that instead of the answers to their discovery (which is what they will be expecting). Then they will next receive your answers. I did things that way because I just thought it would be more annoying to them. 

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Thank you Anon Amos for the explaination.  To clarify for others who may have the same question you just answered that the starting date counting toward the 30 days is the day the plaintiff drops the mail @ UPSP, not the day we receive that mail.  This can be checked by looking at the postmark on the envelop from the JDB.  Luckily, I still keep the envelop and found out that I have only one day left to send the reply to them (including the 5 extra days.)

 

I will have to send them the RFPs later then.

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Hi,

 

I sent the answers to interrogatories to JDB lawyers and received the answer from them regarding to my demand for the bill of particular.  In the letter, they cites some cases and with CCP 454 stated that the cause of the action is "BREACH OF CONTRACT" and "COMMON COUNTS / ACCOUNT STATED"; therefore, they don't have to reply to the demand for BOP.

 

I read and search to find the explanation for their refuse:

 

"Even though Code of Civil Procedure section 454 authorizes a Demand for Bill of Particulars in an action "on an account," it is not available in an action on an "account stated". (Distefano v. Hall (1963) 218 Cal. App. 2d 657, 677.) As such, the defendant in a lawsuit where the complaint only alleges breach of contract and a common count for "account stated" will not be able to utilize a Demand for Bill of Particulars. Instead, the defendant must resort to the traditional forms of written discovery such as Form Interrogatories, Special Interrogatories, Demand for Production of Documents and Requests for Admissions."

 

Is this correct?

 

I read the CCP here and it says nothing about that:

 

leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml.

 

If this is correct, I will have to send the interrogatories to them. What is the time frame for me to do the interrogatories? I read the CCP says that the cut-off time for discovery is 30 days before trial.  I now have only 65 days to the trial. Does it enough time to do it?

 

Another thing, I read many posts here talk about the CMC, but I don't think I have one. Do I need to file some paper works with court to get this CMC?

 

Thank you for your answer.

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Hi,

 

I sent the answers to interrogatories to JDB lawyers and received the answer from them regarding to my demand for the bill of particular.  In the letter, they cites some cases and with CCP 454 stated that the cause of the action is "BREACH OF CONTRACT" and "COMMON COUNTS / ACCOUNT STATED"; therefore, they don't have to reply to the demand for BOP.

 

I read and search to find the explanation for their refuse:

 

"Even though Code of Civil Procedure section 454 authorizes a Demand for Bill of Particulars in an action "on an account," it is not available in an action on an "account stated". (Distefano v. Hall (1963) 218 Cal. App. 2d 657, 677.) As such, the defendant in a lawsuit where the complaint only alleges breach of contract and a common count for "account stated" will not be able to utilize a Demand for Bill of Particulars. Instead, the defendant must resort to the traditional forms of written discovery such as Form Interrogatories, Special Interrogatories, Demand for Production of Documents and Requests for Admissions."

 

Is this correct?

You could file a motion to compel, or send a meet and confer letter, but you don't have much time, so I would move on to discovery.

 

I read the CCP here and it says nothing about that:

 

leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml.

 

If this is correct, I will have to send the interrogatories to them. What is the time frame for me to do the interrogatories? I read the CCP says that the cut-off time for discovery is 30 days before trial.  I now have only 65 days to the trial. Does it enough time to do it?

Just enough time, act FAST. I would sens a simple 4 0r 5 document request in discovery, "request for production of documents"

 

Another thing, I read many posts here talk about the CMC, but I don't think I have one. Do I need to file some paper works with court to get this CMC?

Make sure you did not overlook one, check your case on the court's website. The judge will be the one to set the cmc., so I would not worry about filing anything.

 

Thank you for your answer.

No problem, good luck

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Thank you, Anon Amos, racecar and all other Experts in this awesome forum for taking time to help newbies like me.  I will try to get the RFD out of the door to the plaintiff this Friday using the sample from ReadytoWinCA and ASTMedic.

 

- These are the requests that I intend to send to the plaintiff:

 

1. All documents relating to or constitution any agreement between defendant and BANK
2. All documents relating to or constitution any assignment to plaintiff of the account in the complaint
3. All documents relating to or constitution any statements of account showing all the payments and credits from inception to the alleged date of default.

 

Are those requests for documents enough for the discovery process or do I have to add some more in?

 

Does plaintiff has 30 days (few extra days if mail) or 10 days to reply the document requests?

 

- I read one of the thread (sorry to forget bookmark it) in which CALawyer recommends that we should keep this RFD short since the plaintiff would deny anyway (like I did :-). Does it mean that I don't have to send them the special interrogatories and RFA?

 

- I check my case online with the Superior Court web site and confirm that there is no CMC for my case, only the trial date. My the other case (I defaulted 4 total due to housing crisis; my mistake) is the same: no CMC; only trial date. Should I call the court cleck to check?

 

Thank you all for your help again, as always. I really realy want to Kick JDB as hard as I could.  As racecar has warned, it really take a lot of time to fight back.  And I mean with the help from everyone in this forum; if not, I think I would give up.

 

 

 


 

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Thank you, Anon Amos, racecar and all other Experts in this awesome forum for taking time to help newbies like me.  I will try to get the RFD out of the door to the plaintiff this Friday using the sample from ReadytoWinCA and ASTMedic.

 

- These are the requests that I intend to send to the plaintiff:

 

1. All documents relating to or CONSTITUTING any ALLEGED agreement between defendant and BANK

2. All documents relating to or constitution any assignment to plaintiff of the ALLEGED account in the complaint

3. All documents relating to or constitution any statements of ALLEGED account showing all the payments and credits from inception to the alleged date of default.

4. Please produce the application for credit from defendant for the alleged account.

Are those requests for documents enough for the discovery process or do I have to add some more in?

That's good enough and simple

 

Does plaintiff has 30 days (few extra days if mail) or 10 days to reply the document requests?

30 days + 5 for mailing

 

- I read one of the thread (sorry to forget bookmark it) in which CALawyer recommends that we should keep this RFD short since the plaintiff would deny anyway (like I did :). Does it mean that I don't have to send them the special interrogatories and RFA?

That's exactly what it means, you don't need objections, you need proof they don't have what they need to win the lawsuit.

 

- I check my case online with the Superior Court web site and confirm that there is no CMC for my case, only the trial date. My the other case (I defaulted 4 total due to housing crisis; my mistake) is the same: no CMC; only trial date. Should I call the court cleck to check?

It wouldn't hurt. Better safe then sorry

 

Thank you all for your help again, as always. I really realy want to Kick JDB as hard as I could.  As racecar has warned, it really take a lot of time to fight back.  And I mean with the help from everyone in this forum; if not, I think I would give up.

It does take a lot of time, but that's how the bottom feeder sees it as well. If you force them to work on the case they are much more likely to dismiss. You will have to fight them hard, CACH will fight and spend $$ before they give up, you have to convince the lawyer it will not be worth it. At some point when you speak to the lawyer on the phone you need to convey that message.

 

 

 

 

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Hi Everyone,

I sent to the bottom feeder (BF) my RFPs last Friday (with POS30 and CMRRR) and mark the date for the answer.  Thank you for your help, Anon Amos.  Also, I called court clerk and they told me that my cases don't have the CMC because they are collection suits; there are only trial date.

I have some questions hope someone could give me the answers or point me to the right direction to search for them:

1/ How to ask for jury trial and prepare for it since I see Anon Amos (Post #18 in "How CACH operates") stated:
 

http://www.creditinfocenter.com/community/topic/319075-how-cach-operates/
I demanded a jury trial too. Even if the bottom feeder has a strong case; they still need a jury that likes bankers, debt collectors, and lawyers (nothing against lawyers), and it's 2 days,  a lot of work, they will need a witness, and it cost them plenty. The lawyer for CACH told me they would accept any type of arbitration or a bench trial, and that a jury trial was unneccessary.

 

Check with the court clerk?

2/ Affirmative Defence:

I filed answer with general denial and no affirmative defence; how to raise the affirmative defensives in court since I read the "Lack of Standing" post (link below in #3) in which Coltfan1972 wrote that if we don't raise them in the answer; we waive them. I saw 1111girl raised at least 10 of them when she filed the answer to the bottom feeder (BF). Unfortunately, I found her post too late after filing answer.

3/ Standing:

Should I raise the standing issue? Since if I raise it the burden of proving it will fall back on me (and I have no experience how to proceed with it.) Coltfan1972 pointed out an interesting point in "Lack of Standing" post #2

 

(http://www.creditinfocenter.com/community/topic/311242-lack-of-standing/)
Be very careful arguing standing as an affirmative defense. Like most, it basically makes you admit to the allegations but you have a legal excuse on why the other side still can't win. That is why I would not argue it as an affirmative defense. You put the burden on the other side to prove, not you disprove. If they actually meet that burden, you can then back off and look for other ways to win.


However, there are some very good documents I downloaded from the web regarding how to defence the Collection Debt in which the CA wrote that the easiest to defeat the case is to raise the issue of STANDING.

I know for sure that someone has posted somewhere in this forum, but could not find it; I post back the links here so that others could stumble upon and download and read:

http://www.courts.ca.gov/partners/documents/2011SRL5eRooney.pdf
http://msfraud.org/LAW/Lounge/Defending-Junk-Debt-Buyer-Lawsuits_5-12.pdf
http://warybuyer.com/wp-content/uploads/2011/10/How-To-Defend-a-Credit-Card-Case.pdf
http://thegloverlawfirm.com/wp-content/uploads/offensive-defense.pdf
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2079155 (Peter A. Holland, Defending Junk-Debt-Buyer Lawsuits)
http://www.jtexconsumerlaw.com/V12N2/V12N2Everything.pdf (Everything You Need to Know About Defending Suits by Debt Buyers)


4/  BOP and MTC letter:

I read the CCP rule and digged around and found that for the BOP, there is no time bar except everything must be done on or before 30 days of trial date; should I send the MTC letter to the bottom feeder (BF) to demand for the paper if I already sent them the RFPs? I just want to poke them like you to make them spend more time :-)

5/ When do I have to submit the "Defendant Trial Brief" to court?  Also, do I have to send them (with or without POS) to the bottom feeder?

6/ What are my next steps after the RFPs sent?

Thanks
 

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Dobbins vs Hardister CAL

While modern discovery devices may serve the same purpose as a BOP, it should be noted that the primary purpose of discovery is the production of evidence for use at the trial, while the use of a bill of particulars is to amplify the complaint in order to make easier for the defendant to prepare his pleadings.

 

Gilmore vs hill CAL see also Butler bros vs Connolly

The rationale of our code system  of pleading that a bill of particulars be funrished upon demand in connection with litigation concerning accounts is that such a bill of paticulars amplifies the plaedings to which it relates in the nature of a more specific allegation of the facts that are claimed to exist, it has also been said that the purpose of a bill of particulars is to apprise the defendant of the details of the plaintiffs claim in order that th defendant may intellegenty present his defense.

 

Salinas Valley Lumber Company vs Magne-Silica Company also see Farwell vs Murray and Lewin vs Merck and Co.

Since the complaint contain the form of common counts, the defendant is entitled to demand a bill of particulars under section 454, requiring plaintiff to furnish defendant with the details of the items charged against him.

 

Also see Meridith vs Marks

 

Common counts:

Cowdery v. McChesney, "[t]he only way an account can be proved ordinarily[] is by establishing by evidence the several items of the same

 

Debt purchasers and collectors most common complaint is common counts, common-counts theories I.E.., goods, wares and merchandise, services rendered, or money lent, are nearly identical to the open-book-account cause of action, Because the theory underlying common counts dates back at least to the late 1800s, this rule should be largely the same from state to state. The key to defending common counts, including an open-book account, is to force the debt buyer to prove the account's individual items.

 

The first step in forcing the debt buyer's hand is to request a complete list of the debits and credits, or charges and payments, composing the account alleged--known in California as a "bill of particulars." Not all states allow use of this mechanism, but all states should at least allow a list of the charges and payments on the account to be obtained through discovery. However you obtain it, the information you want is charges incurred and payments made. In other words a complete accounting history from zero balance.

 

Typically debt buyers are unable to produce a list of the charges. If the debt buyer is unable to produce a list of the charges, then proceed with a motion to compel or a similar discovery motion; you should be able to exclude the introduction of any evidence of any portion of a debt that is not supported by a corresponding charge, resulting in a partial or complete defense to all common counts except an account stated.

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Thank you, BTO429 and BV80, I will digest these as much as I can.  I did download and read Mr. Rooney paper couple times as well as paper.  Still have to go through it few more times...

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Hi Everyone,

I sent to the bottom feeder (BF) my RFPs last Friday (with POS30 and CMRRR) and mark the date for the answer.  Thank you for your help, Anon Amos.  Also, I called court clerk and they told me that my cases don't have the CMC because they are collection suits; there are only trial date.

I have some questions hope someone could give me the answers or point me to the right direction to search for them:

1/ How to ask for jury trial and prepare for it since I see Anon Amos (Post #18 in "How CACH operates") stated:

You need to check your rules, it must be in there somewhere (you may have to look hard), You could try asking the clerk, they may not be of much help if any, but you may end up talking to a good clerk that might help. I do know a jury fee deposit of $150 must be paid to the court 30 days prior to trial, so you may use this as a way to get your foot in the door. Inquire about the fee and should lead you to the answer. This is assuming you have trouble finding the answer in the rules, or by asking the clerk. 

 As far as preparing for and actually "conducting" a jury trial, you must realize it is a lot of work and nothing like a bench trial, and you must "select" a jury as well. You would want to see a "live" jury trial,, including jury selection and learn a lot about trial techniques. You will have to prepare as if it will go all the way to trial, but realize it most likely won't. No one here has ever confirmed a jury has ever had to sit thru a cc case, I doubt yours would be the first.

 

Check with the court clerk?

2/ Affirmative Defence:

I filed answer with general denial and no affirmative defence; how to raise the affirmative defensives in court since I read the "Lack of Standing" post (link below in #3) in which Coltfan1972 wrote that if we don't raise them in the answer; we waive them. I saw 1111girl raised at least 10 of them when she filed the answer to the bottom feeder (BF). Unfortunately, I found her post too late after filing answer.

3/ Standing:

Should I raise the standing issue? Since if I raise it the burden of proving it will fall back on me (and I have no experience how to proceed with it.) Coltfan1972 pointed out an interesting point in "Lack of Standing" post #2

You are denying thier standing to sue you by the general denial anyway, you deny everything. Just defend the case, and "put them to the evidence", force them to prove thier allegations, and don't admit anything. Other than that; you would need to file an amended answer and add any affirmative defenses you want to assert.

 

However, there are some very good documents I downloaded from the web regarding how to defence the Collection Debt in which the CA wrote that the easiest to defeat the case is to raise the issue of STANDING.

This is true, and the Rooney article is very good. You can just attack their standing as a general denial (deny everything/admit nothing), or like I said; amend the answer and add it and a few others (if you have them). If you fight the case properly you can win either way. I would probably only amend if i felt I had another affirmative defense to add, like: Unclean Hands (which contrary to popular belief, most certainly is an affirmative defense)

 

I know for sure that someone has posted somewhere in this forum, but could not find it; I post back the links here so that others could stumble upon and download and read:

http://www.courts.ca.gov/partners/documents/2011SRL5eRooney.pdf

http://msfraud.org/LAW/Lounge/Defending-Junk-Debt-Buyer-Lawsuits_5-12.pdf

http://warybuyer.com/wp-content/uploads/2011/10/How-To-Defend-a-Credit-Card-Case.pdf

http://thegloverlawfirm.com/wp-content/uploads/offensive-defense.pdf

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2079155 (Peter A. Holland, Defending Junk-Debt-Buyer Lawsuits)

http://www.jtexconsumerlaw.com/V12N2/V12N2Everything.pdf (Everything You Need to Know About Defending Suits by Debt Buyers)

4/  BOP and MTC letter:

I read the CCP rule and digged around and found that for the BOP, there is no time bar except everything must be done on or before 30 days of trial date; should I send the MTC letter to the bottom feeder (BF) to demand for the paper if I already sent them the RFPs? I just want to poke them like you to make them spend more time :-)

If they are already late on  RFP's you should send the meet and confer right away, and prepare to file a motion to compel / exclude

 

 

5/ When do I have to submit the "Defendant Trial Brief" to court?  Also, do I have to send them (with or without POS) to the bottom feeder?

Check your rules on the trial brief, it may be due a week before trial or 2 days, depends on the court. Anything you file with the court you send to the bottom feeder POS.

 

 

6/ What are my next steps after the RFPs sent?

Keep learning and prepare your meet and confer letter, learn how to file motions. If you do not receive a response from them in 30 days + 5 for mail; you send the meet and confer letter telling them you will file the motion to compel / exclude in 10 days if no response. Then you file the motion on day 11.

 

 

Thanks

 

Your welcome, good luck.

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