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California - received response to demand for BOP


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Hey there, I am in CA being sued by JDB for an alleged wells fargo credit debt. Original debt was a little over 1k, they are suing for a little over $5,000+court costs. They filed suit 3 days before SOL according to date of last payment reported in the complaint, and on on my credit report. They responded to my demand for BOP roughly 30 days after I sent it, and only included a "verification" where the current "CFO and Custodian of Records" "declares under penalty of perjury under laws of CA" that he has "read the foregoing PLAINTIFFS RESPONSE TO DEFENDANTS DEMAND FOR BILL OF PARTICULARS and know its contents." He also is "informed and believe that the matters stated in it are true, and on that ground allege that the matters stated in it are true". It is signed in blue ink so it does not appear to be "robo" signed as I have read about in other posts.

 

Included is one "Exibit 1" "a true and correct copy of a printout of plaintiffs computer system reflecting defendants account created by plaintiff utilizing the data which is input into plaintiffs computer system by plaintiffs employees and counsel, whose responsibility is to record any and all transactions which affect defendants account." The exhibit itself is a screenshot of a program, looks to be called CM-80. There is a field that says "date received 07/13/2012". It has an account number on it, which appears to match what is showing up on my credit report as a wells fargo debt that was "purchased by another lender".

 

I have some questions...

 

#1 - Because the "verification" is declared under penalty of perjury, I assume that means it is "verified", should I respond with something? I thought I read that a verified affidavit should be responded to with a verified affidavit of my own, but I am not sure.

 

#2 - The CFO is not the same person I've seen popping up in extensive web searches as the usually person signing the affidavits. The plantiffs office is about 1.5 - 2 hour drive away, and the CFO might even be up north which would be a 6 hour drive. This makes me think that the route of trying to subpoena the witness might be good, as most the CFO's I've met wouldn't be bothered to drive 2 hours to appear in court with the volume of cases the plaintiff has, but also nobody ever fights so maybe it is something he would take the time to do once in awhile. Any thoughts?

 

#3 - I would assume this response meets the requirements of an insufficient response, I will go back to google now, but maybe someone can tell me the best way to respond?

" The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular." 

 

Thanks for anyone who took the time to read.

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Just because it's in blue ink does not mean it wasn't robo signed, and just because something was stated or "verified" under oath or penalty of perjury does not make it so either. I would not be filing any affidavits at this point. What I would do is just set that to the side for now and send them discovery, RFPOD's, just a simple one with 4 or 5 request.

 

Other than that, you could send them a meet and confer letter stating you feel the BOP response was insufficient and to produce a complete response or you will motion the court to compel a further response or to exclude any further evidence. A lot of times defendants lose this motion and the court tells them to conduct discovery for the information. That is one of the reasons I would just go into discovery.

 

I would do one or the other (myself, it would be discovery), unless Calawyer chimes in with a better idea. I don't think you need to subpoena anyone (yet), not until you receive the ccp 98 declaration in lieu of live testimony.

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If Plaintiff’s response to your BOP was inadequate do what Anon Amos said send meet and confer and give them 10 days to respond or motion will be filed.Make copies of your meet and confer letters.you may need them as exhibits.
NOTICE OF MOTION AND MOTION TO COMPEL BILL OF PARTICULARS
NAME
Address
San Bernardino, CA 91755
Defendant, In Pro Per
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SAN BERNARDINO
111 North Hill Street, San Bernardino, CA 91755
Branch – Civil Limited
XXXXXXXXX,
Plaintiff,
vs.
XXXXXXXXX,
Defendant,
Case No.:

NOTICE OF MOTION AND MOTION TO COMPEL BILL OF PARTICULARS; MEMORANDUM OF POINTS & AUTHORITIES; DECLARATION of XXXXXXXX IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE TO BILL OF PARTICULARS

DATE: July X, 2012
TIME: 8:30 am
DEPT: 77




 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on XXXX, 2012 at 8:30 a.m. in Department 77 of the above-entitled Court located at 111 North Hill Street, Los Angeles, California, Defendant will move, and hereby does move, for an Order compelling Plaintiff to respond fully to Defendant’s Bill of Particulars or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. The motion is made pursuant to Code of Civil Procedure section 454 on the ground that Plaintiff has refused to respond to Defendant’s demand for a Bill of Particulars and good cause exists for the relief requested in this motion.

This motion is based on this Notice of Motion, the Memorandum of Points and Authorities, the Declaration of XXXXXXXXX filed herewith, all of the papers and pleadings on file in this action and such other evidence and argument as shall be adduced at or before the hearing hereof.
DATED: April 23, 2012 ___Signature_____________
Name, In Pro Per

MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION

On October 12, 2011, plaintiff filed a complaint in this matter. The complaint alleges that defendant owes plaintiff the sum of $XXX.XX pursuant to an agreement between defendant and Capital One Bank (USA) NA. No such agreement is attached to the complaint. The complaint sets forth no facts supporting the amount claimed to be owing.

For this reason, on March 13, 2012, defendant served Via Certified Mail RRR, a request for Bill of Particulars on plaintiff.

Plaintiff’s response was wholly inadequate. No contract has been produced. Nor has plaintiff produced all account statements justifying the amount claimed to be owed in the complaint.

Defendant therefore asks that this Court order plaintiff to supplement its Bill of Particulars producing a complete accounting, a copy of the contract referred to in the complaint and a copy of any agreement assigning this claim to plaintiff. In the alternative, defendant asks that the Court enter an order precluding plaintiff from offering any such evidence at the trial of this matter.

II. ARGUMENT

Code of Civil Procedure section 454 governs the use of a Bill of Particulars in California. Pursuant to this section, a plaintiff need not detail all items of an account in the complaint. However, upon request, plaintiff must provide all such information within 10 days or be precluded from giving evidence thereof at trial:

"It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular."

Here, defendant served a request for a Bill of Particulars on March 13, 2012 pursuant to CCP 454. Declaration of XXXXX in Support of Motion for Further Bill Of Particulars paragraph 1.

Defendant asked for a bill of particulars setting forth the items and details of the account on which the cause of action for goods sold and delivered of plaintiff’s complaint is based, including the date of each item or transaction, a description of services, materials or goods supplied or other considerations rendered, the price or charge made for each such item or transaction; and all payments or credits that have been made to the account. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

Plaintiff’s response was wholly deficient. Plaintiff responded to Defendants demand for Bill of Particulars by contending that a Bill of particulars is innapplicable to plaintiffs cause of action.

A true copy plaintiff’s response is hereto attached as Exhibit "B." It did not provide contract, itemized details of the account on which the cause of action for goods sold and delivered 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 such item or transaction.

Defendants good faith effort to meet and confer to avoid the necessity of bringing this motion were futile.

On March 29, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second request for Bill of Particulars, Via Certified Mail RRR. A true copy of my March 29, 2012 letter is attached as Exhibit "C."

On April 2, 2012, Plaintiff responded to Defendants demand for Bill of Particulars by claiming Plaintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or the parties’ agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at the trial. A true copy of plaintiff’s response is hereto attached as Exhibit "D".

On April 13, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a letter Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit "E".

On April 17, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second letter, Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit "F".

The information requested in Defendant’s Bill of Particulars is the bare minimum that plaintiff will need to prove its case at trial. Plaintiff should have had this information in its possession before filing suit. There is simply no reason that it should not be produced in response to a properly served Request for Bill of Particulars. The Court should require plaintiff to do so immediately.
III CONCLUSION

Plaintiff’s response to defendant’s Bill of Particulars is inadequate. The Court should require plaintiff to supplement its response immediately and produce all statements pertaining to this account from inception showing all payments made and charges to the account at issue. In addition, plaintiff should produce the contract referred to in the complaint and any agreement assigning the claims at issue to the plaintiff. In the alternative, the Court should enter an order pursuant to Code of Civil Procedure section 454 precluding the plaintiff from offering any such evidence at trial.
DATED: April 23, 2012XXXXXXXXX
In Pro Per

DECLARATION OF XXXXXXXXX IN SUPPORT OF MOTION TO COMPEL
FURTHER RESPONSE TO BILL OF PARTICULARS
I, XXXXXXXXXX declare as follows:

I am the defendant in the above-entitled proceeding. I have personal knowledge of all the facts contained herein, and if called to testify, could and would testify competently thereto.

1. Defendant served his Demand for Bill of Particulars Via Certified Mail RRR to Plaintiff’s attorney, Mark D. Walsh, on March 13, 2012. A true copy of the mailing declaration and Demand of Particular is attached hereto as Exhibit "A."

2. On March 20, 2012, defendant received Plaintiff’s objection to Demand for Bill of Particulars, claiming that a Bill of Particulars may be served on the plaintiff only in an action on an account. It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof…"A bill of Particulars is not appropriates in an action on account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: i.e., there is nothing left to itemize. Plaintiffs complaint alleges breach of contract and account stated as causes of action. As such it is plaintiff’s position Bill of particulars is inapplicable to plaintiff’s cause of action. A true copy plaintiff’s response is hereto attached as Exhibit "B."

3. On March 29, 2012, Defendant sent a letter, Via Certified Mail RRR, to Plaintiff’s attorney Mark D. Walsh, observing that plaintiff’s response was incomplete and insufficient and requesting that Plaintiff provide a supplemental response. A true copy of my March 29, 2012 letter is attached as Exhibit "C."

4. On April 2, 2012, defendant received Plaintiff’s response to Bill of Particulars and One (1) Capital One Bank (USA) NA Statement for April 2012. No further documents were produced. Plaintiff responded by letter claiming that plaintiff has not yet completed its discovery and/or investigation as to what other amounts plaintiff may be entitled to in accordance with the law and/or parties’ agreement. As such, plaintiff reserves the right to amend this response at any point prior to and at trial. A true copy of plaintiff’s response is hereto attached as Exhibit "D".

On April 13, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a letter Via Certified Mail RRR, attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit "E".

On April 17, 2012, Defendant sent to Plaintiffs attorney, Mark D. Walsh, a second letter attempting to meet and confer in good faith. A true copy of my letter is hereto attached as Exhibit "F".

I declare under penalty of perjury that the foregoing is true and correct.
Executed this 23rd day of April, 2012 at San Bernardino, California.

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If Exhibit one is just a print-out with the final balance, I think it is inadequate.  You are entitled to all of the items of the account per CCP 454.  Exhibit 1 sounds like the final item.  Or not even that.  Just some sort of tally.

 

Expecially here where the complaint is very close to being time-barred on its face.  If it turns out plaintiff was wrong by a week, this case gets dismissed.

 

I would write a letter meeting and conferring.  You are entitled to all account statements.  I would push for them in connection with the BOP.  If the court won't order it (and many do by the way), you can do a document request.

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Thanks for the responses everyone. I will proceed with preparing the meet and confer letter and start doing more research into the discovery/RFPOD stuff.

 

Exhibit one was indeed just a screenshot of the JDBs computer program showing a total, that I assume they could have just typed my information in to regardless of whether they own the debt. I have two follow up questions if someone has time:

 

1) The cause of actions include money lent, account stated, and a third that I cannot recall. I sent the demand for BOP in response to the money lent cause of action, and understand that the account stated would not entitle me to a BOP. If they were unable to get anything from the OC, and were precluded from entering evidence per CCP 454, would that prevent them from moving forward with any cause of action except account stated? The way I understand it they only have to receive judgment in their favor on any one of the causes of action, and at that point they would be forced to pursue account stated as it would be impossible to receive judgement on one of the other cause of actions where they are not allowed to have evidence.

 

2) For the SOL defense, do they have to provide some kind of proof that I made a payment? Or would the date on the credit report be enough? I would guess they need to provide a statement showing a payment, but I am not sure.

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I agree also check your records if the last payment was another date on another credit report it is good to shazam them with it. Also since they have the burden to prove it is within the statute of limitations then you could press them. also is arbitration a good strategy for this if they have to dismiss due to forums non conviens doesn't that kick the case out as if the court has no jurisdiction they are outside of SOL.

 

Just some things to think about. to get the sol clock stopped they would have to file suit in the proper forum if the proper forum is arbitration then the court is not a proper forum.

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