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Sued by Cach LLC in CA (Update: I win! It's over.)

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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 Law Group

3. How much are you being sued for? 4xxx.xx

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

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

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

7. Was the service legal as required by your state?  I don't think so (not left with any person)

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? LA county, CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  uncertain; maybe 10/2011 (per Equifax)

11. What is the SOL on the debt? CA: 4 yrs

12. What is the status of your case? Suit served? Motions filed? Summons "served" only

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? No

15. How long do you have to respond to the suit? (This should be in your paperwork). 30 days from service  

 

We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 1)Breach of Contract  2) Common Counts (Account Stated)

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No exhibits, no attachments, nothing.

 

 

Plan to start with BOP, but not sure whether I should wait for proper service first?  then will follow with M and C, MTC, and other discovery.

 

I need to win.  Thanks in advance!

 

String

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They will balk at the BOP but send it any way. tomorrow use Calawyers excellent example. the prep your answer this one is a good guide

or you can use the court form.

You can also start reading the jury instructions in the CACI jury instructions to learn what they have to prove. They have nothing and therefore they cannot do anything but trot out the Distefano case.

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- Take deep breath and spring into action. Don't make mistake as I did: to let fear and ignorance to overcome me for a while.

- Read SeaDragon and DaFish's post above; specially about ASTMedic to know what step you have to take.  Include in ASTMedic's post is Seadragon's checklist for trial, you should have a calendar and mark on it all the date in the checklist to avoid last minute pressure to get the job done like me.

- just search this forum for each step while you fight again CACH, there are so much good info here to help you.

- Post it if you have question, many helpful experts here will help you out as I have learnt. I am fighting with CACH also right now and here is the link to my thread so that you could use if it helps

 

http://www.creditinfocenter.com/community/topic/319193-need-guidance-in-replying-cachs-interrogatories/

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Here's my 2 cents worth. A summons cannot be stapled to the door in CA that only works for an unlawful detainer (eviction). If service was improper then you can file a motion to quash. This has to be done before you file an answer. I've dealt with Mandarich they are bottom feeders and so are the process servers they employ. Don't be intimidated that is how these people operate. Also check and see if there was a governing law statute with GE, that means if GE were for example incorpoarated in Delaware and their credit card agreement abides by law of that state then it can be argued that the SOL of DE applies not CA.

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Thank you all very much for the replies and advice.

 

Re service: even though I have the summons/complaint there's no way a POS has been filed, so I assume I have some time to get things in order.  However, since it's a rule 3.740 collection, plaintiff has 6 months to serve and eventually it will happen.  I'm hoping to have everything nearly ready to go by then.

 

Re BOP: it seems that sending it now would have the effect of showing that I was successfully served, so I think I should wait until I've been properly served and send BOP on that date?  Also, from what I've read here, it seems that the BOP is relevant to the breach of contract cause of action and not the account stated.  Therefore my BOP should state:

 

... a Bill of Particulars setting forth all items and details of the account on which the cause of action for breach of contract of plaintiff’s complaint is based ...

 

Thanks in advance for any thoughts on the above!

String

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- In my opinion, it is not worthy to find against the improper service since JDB can always refile anytime as you mentioned unless you have time on-hand and want to give them hard time or you want more time to file the answer. You also may do it as signal to CACH that you are willing to fight unless they have proof to show you that CACH legally owns that debt (which I doubt it.)

 

- Also, as wobbly shoes mentions above, it is worthy to check if you contract is governed by CA or DE law through all the agreements that GE sent to you (if you still keep them around.) As far as my research into this topic, if we opened the account here in CA, CA law will be applied unless in the agreements that GE sent to you stated otherwise. GE could modify the agreements anytime. In my case, the bank sent me at least five different agreements with changes in the way to handle the dispute (and like most of us, I throwed away w/o reading ;- 0 ).

 

- Here are few links regarding to BOP for you to read through. There is calawyer's BOP letter that you could use to send to the bottom feeder's lawyers; and it is a good one:

 

http://www.creditinfocenter.com/community/topic/301840-california-supreme-court-bill-of-particulars/
http://www.creditinfocenter.com/community/topic/307597-objection-to-bop/
http://www.creditinfocenter.com/community/topic/309963-unanswered-bop-in-california/

(Including the BOP letter from calawyer)
http://www.creditinfocenter.com/community/topic/310833-anyone-from-california-know-what-pos-to-use-to-when-serving-an-answer-to-complaint/

 

Of course, 100% that Mandarich will oppose the BOP letter based on the Distefano v. Hall 218 Cal. App. 2d 657 case.  When you receive the object letter from them, read my post, where calawyer posted a letter for use in this case. 

 

You may also visit this post where ReadytoWinCA, like in ASTMedic's post, posted most of his documents he used to fight against the JDB:

http://www.creditinfocenter.com/community/topic/315816-ca-asset-acceptance-open-acct-acct-stated-s-about-discovery/

 

Read this one also to know why we should read all the documents the bottom feeder sends to us:

http://www.creditinfocenter.com/community/topic/318135-for-those-being-sued-by-cach-llc-pay-close-attention/

 

good luck

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Thank you all very much for the replies and advice.

 

Re service: even though I have the summons/complaint there's no way a POS has been filed, so I assume I have some time to get things in order.  However, since it's a rule 3.740 collection, plaintiff has 6 months to serve and eventually it will happen.  I'm hoping to have everything nearly ready to go by then.

 

Re BOP: it seems that sending it now would have the effect of showing that I was successfully served, so I think I should wait until I've been properly served and send BOP on that date?  Also, from what I've read here, it seems that the BOP is relevant to the breach of contract cause of action and not the account stated.  Therefore my BOP should state:

 

... a Bill of Particulars setting forth all items and details of the account on which the cause of action for breach of contract of plaintiff’s complaint is based ...

 

Thanks in advance for any thoughts on the above!

String

You should file a motion to quash service of summons. I as supposedly served by them handing it to me at my apartment. I was a very large public event. They tried to screw me. I had to go to court and look at the documentation attahced to my case to find out how they supposedly served me. You should do this. They probably stated you answered the door and they handed it to you. They flat out lied on mine. I can send you the lovely document that Seadragon drafted for mine. It starts to cost them money and that is what you want to do. It probably won't be granted but do it anyways. I hope yours is granted but all it will do ineffect is make them serve you again. I can PM you the motion if you like.

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I will say that the Calendar is a good Idea, and that the timeline is a good thing to know but the best thing to know really is how your judge rules in these cases. go observe court at trial take notes for the pro per and share CIC with other pro pers

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 Also check and see if there was a governing law statute with GE, that means if GE were for example incorpoarated in Delaware and their credit card agreement abides by law of that state then it can be argued that the SOL of DE applies not CA.

 

Utah is the choice law state.  SOL is the same as Cali, 4 years.

 

Attached are an 09 and 12 GEMB Cardholder Agreement.

 

String, both also have JAMS  <----(hint, you are in California and you are dealing with a JDB, not an OC.)

GEMB CMA 09.pdf

GEMB CMA 12.pdf

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Thanks again to all!

 

I recently got another copy of the summons/complaint via regular mail, and got a voicemail from JDB saying something like: "It's very important that I speak with you regarding documents you've received."  But I checked the docket online and there's no POS filed, only the complaint and OSC (6 months from complaint filing).  So, I'm not gonna worry too much about service, just make sure I have everything ready for when I do get properly served.

 

I think trying to learn about the judge's record on handling JDB cases is a great idea, but my case will soon be transferred to another court (a lot of court closings coming up in LA County), and I don't know whether the case will be reassigned.

 

So, I have my BOP ready and will send it the day after I'm served (or sooner, if I feel like moving this along).  That will give me time to get responses and send meet and confer letter before I have to file an answer (general denial is prepared and ready to go).  After filing an answer, I'll send RFPs, then MTC BOP, then meet and confer re RFPs, and MTC RFPs, along with answering their discovery.  Here is what I'm planning to request in the RFPs:

 

ALL DOCUMENTS referring to or constituting the alleged application referred to in paragraph 5 of plaintiff's unverified complaint.

 

ALL STATEMENTS referred to in paragraph 9 of plaintiff's unverified complaint.
 

ALL DOCUMENTS reflecting or constituting the alleged assignment to YOU of the account at issue in this lawsuit.

 

Any opinion on these RFPs would be greatly appreciated.  The paragraphs I've referenced state:

 

5. Plaintiff believes that, for value received, Defendants, and each of them, executed and delivered

a credit card application to GE MONEY BANK (Plaintiff's assignor) or 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 XXXXXXX:XXXXX1234 (the "Account").

 

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.

 

 

Lost without this board.  Thanks so much!

String

 

 

 

 

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If you have it already I would not delay past the 30 days especially if they have said they had served it before you cannot wait for them to submit a POS as they have no real timeline to submit it and you could go outside the 30 days to answer limit.

 

also sending a BOP right now will poop in their wheaties.

 

 

Long form General Denial.doc For the answer to the complaint
 

http://www.creditinfocenter.com/community/topic/310777-help-with-discovery-needed-against-midland/#entry1241305 for the Bill of Particulars

 

And I respectfully leave it up to you how to line up for the bowl.

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Thanks Seadragon.  I'll answer within 30 days of receipt and deal with lack of proper service then.  (I do want them to spend a little more money doing it right).  BOP goes out today; it's basically Calawyer's, so I'm confident it's correct.  Posted below in case it helps anyone else, or if anyone sees a mistake.

 

 

 

DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for Breach of Contract of plaintiff’s complaint is based to include: an agreement and/or contract of said account, date of each transaction on the said account, the price or charge made for each item, all payments or credits that have been made to the account, a detailed account of how plaintiff calculated the amount owed, and any agreement assigning the account at issue to the Plaintiff. 

 

 

Thanks!

String

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I would wait until you receive a response to the BOP before you send any document requests.  If you don't, plaintiff will argue (incorrectly, in my opinion), that you don't need a BOP.  THen, plaintiff will object to all of your document requests.

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I guess it's time to file a motion to quash service of summons.

 

They filed a POS of summons, declaration of reasonable diligence, and declaration of mailing.  The declaration of mailing is the only one that's true.  POS is completely and obviously full of lies, dec of diligence is less obvious, but also full of lies.  I want to make them re-serve and spend more money.  Also want to start exposing their lies.

 

Will search the board for examples of motion to quash, please let me know if you have any thoughts.

 

Thanks!

String

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I don't want to obsess over a POS, but the outright lying bothers me.  Does anyone think I'd run a risk of teeing off the judge or stretching credibility if I cross claim for abuse of process?  My argument is that plaintiff filed a bogus POS to facilitate the goal of getting a default judgment and/or depriving me of the statutory time to file an answer.

 

I'll back off if others think it's an unwise move, but it seems that if it'll hunt it could be a good offensive.

 

(I've decided against a motion to quash for now, but I'd like to take BOP as far as possible before I have to answer so thinking about requesting more time instead.)

 

Thanks!

String

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I don't want to obsess over a POS, but the outright lying bothers me.  Does anyone think I'd run a risk of teeing off the judge or stretching credibility if I cross claim for abuse of process?  My argument is that plaintiff filed a bogus POS to facilitate the goal of getting a default judgment and/or depriving me of the statutory time to file an answer.

 

I will PM you about this. 

 

(I've decided against a motion to quash for now, but I'd like to take BOP as far as possible before I have to answer so thinking about requesting more time instead.)

 

I think that is a wise decision.  Judges are not pleased with motions to quash where the plaintiff can easily re-serve at an address you will have to provide them at the very top of your motion.

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however, feel free to report the process server to the DA, as they basically committed perjury.

I tried that and the DA said they wouldn't accept any report due to nobody had been hurt. They said i would have had to already had a default judgement to file anything. WOW yup so in my case the DA and the judge both said yup they lied but since you found out about the case by accident everything is ok, so it's a waste of time. Which means they will not be punished and will keep lying. The more I learn about how the court functions the more disappointed I am in it.

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update: I sent BOP and got the usual Distefano response.  Sent M&C letter, and also filed general denial and cross complaint. Received the following in reply to M&C:

 

We are in receipt of your letter dated  xx 2013 and as previously indicated your demand for a Bill of Particulars.
Pursuant to California law we believe your request is inapplicable for the account stated pled in the subject
complaint [Distefano v Hall (1963) 218 Cal. App. 2d 657. 677]. As a result, please be advised that we will not
provide a response accordingly.
As a courtesy and in order to get this matter resolved attached please find; charge off statement and account
statements; Bill of Sale with Redacted Loan Schedule and the card member agreement.
Should you have any questions or concerns feel free to contact our office.

 

Attached were:

1)  BILL OF SALE

 

2) Notification Files - computer printout of mostly blank pages, but including pages (allegedly) with my name, address, account number, principal, interest rate, loan date, last paid date, name of OC, open date and charge off date.

 

3) Two account statements for someone else (not me).

 

4) One account statement for me showing 1 transaction: "SOLD TO SQUARE 2 FIN" with the amount paid (not much)

 

5) 2008 (generic) OC credit card agreement.

 

 

I think it's time to Compel a more complete BOP?  Not sure if another meet and confer is needed.  Any thoughts greatly appreciated.

 

String

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I think it's time to Compel a more complete BOP?  Not sure if another meet and confer is needed.  Any thoughts greatly appreciated.

 

String

You could motion the court for a "further response to the BOP or in alternative preclusion of additional evidence". I would send a M&C letter first giving them 10 days to respond or you will file the motion. That looks better to the judge.

Or; you could send discovery, request for production of documents.

 

Nice job on filing the cross complaint.

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Thanks to ALL for specific help here, and general help all over this board - what a great resource you are!!!

 

Update: sent M&C re BOP, no response.  However, JDB lawyer has tried to contact me by phone a few times because they have "a couple of questions" about my cross-complaint.  Tried a few times to call them back, but never connected.  Oh well .....

 

Time to MTC BOP.  Please let me know if any comments:

 

 

 

 

NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSE TO DEFENDANTS BILL OF PARTICULARS OR, IN THE ALTERNATIVE, TO PRECLUDE EVIDENCE AT TRIAL;

MEMORANDUM OF POINTS &

AUHORITIES; DECLARATION

OF STRING IN SUPPORT

 

Date:  XXX

Time:  XXX

Dept:  XXX               

 

 

NOTICE OF MOTION

 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on XXX. in XXX of the above-entitled Court located at XXX California, Defendant, will move and hereby does move this Court for an order compelling Plaintiff to respond fully to Defendant’s Demand for Bill of Particulars or, in the alternative, to be precluded from offering any such evidence at the trial of this matter. This motion is brought pursuant to Code of Civil Procedure section 454 on the grounds that Plaintiff has refused to respond to Defendant’s Demand for Bill of Particulars and good cause exists for the relief requested in this motion.

This motion is based upon this Notice, the attached Memorandum of Points and Authorities, the supporting Declaration of String filed herewith, all papers and pleadings currently on file with the Court in this action, and such other evidence and argument as shall be adduced at or before the hearing hereof.

 

 

 

Date

Defendant 

 

 

By:__________________________________

Defendant In Pro Per

 

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

 

Plaintiff filed a complaint in this matter alleging that Defendant owed money to Plaintiff pursuant to an agreement between Defendant and Plaintiff’s assignor, GE MONEY BANK. No such agreement was attached to the complaint. The complaint contained no evidence supporting the amount prayed for and Plaintiff’s ownership of the alleged debt.

 

For this reason, Defendant filed a general denial and served a Demand for Bill of Particulars on Plaintiff requesting the credit card agreement and/or contract between Defendant and Plaintiff’s assignor, itemized statements, and documents which prove Plaintiff’s ownership of the account at issue. Plaintiff objected to the request and refused to provide pertinent information. Subsequently, Defendant sent two letters to Plaintiff in an attempt to meet and confer regarding Plaintiff’s refusal to provide the requested information. Plaintiff’s responses were 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.

 

Furthermore, without all charges allegedly made, and all credits applied thereto, it is not possible to verify the amount prayed for in the complaint. Weil and Brown, the California Civil Procedure Before Trial Fourth Edition Volume 2 states: Contents of Bill; Detail required. When there is no account to copy (i.e., an action on common count), the bill of particulars should list the items or services for which the Plaintiff claims payment is due. No court decision has precisely fixed the standard of detail required in the bill; however, because its purpose is to give reasonable notice of the items constituting the claim in order to enable the defendant to prepare for trial, the bill should set forth those items with particularity.

 

Here, Defendant served a request for a Bill of Particulars on DATE. (Declaration of String in Support of Motion to Compel Further Response to Defendants Bill of Particulars, or, in the Alternative, to Preclude Evidence at Trial, paragraph 1.) ("String Decl"). Defendant asked for a Bill of Particulars setting forth the items and details of the account on which the cause of action for Breach of Contract of Plaintiff's complaint is based, including the date of each item or transaction. (String Decl. paragraph 1 and Exhibit A thereto).

 

On DATE, Plaintiff refused Defendant's request. (String Decl. paragraph 2 and Exhibit B thereto.)  Therefore, Defendant sent a meet and confer letter dated DATE. (String Decl. paragraph 3 and Exhibit C thereto.)

 

On DATE, Plaintiff again refused Defendant's request for a Bill of Particulars, but attached documents “as a courtesy and in order to get this matter resolved.”  Plaintiff's response was inadequate.  (String Decl. paragraph 4 and Exhibit D thereto.)

 

Therefore, Defendant sent a final meet and confer letter to Plaintiff (String Decl. paragraph 5 and Exhibit E thereto), and Plaintiff did not respond.

 

The information requested in the 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 this suit.  There is no reason for the Plaintiff and its Attorney of Record to not properly respond and comply with the Demand for a Bill of Particulars. The Court should require the Plaintiff and its Attorney of Record to do so immediately.

 

III. CONCLUSION

 

Plaintiff’s response to Defendant’s Demand for Bill of Particulars is inadequate. Plaintiff had ample time prior to filing this suit to gather the necessary documents to prove its case. Defendant has given Plaintiff ample time to respond to Defendant's meet and confer letters and provide the requested documents. Defendant has tried to amicably work with the Plaintiff and its Attorney of Record in this matter without seeking relief from the Courts. However, in light of Plaintiff's response, Defendant is left with no recourse other than to ask for relief. The Court should require Plaintiff to supplement its response immediately and produce the credit card agreement and/or contract referred to in the complaint, all itemized statements pertaining to this account from inception showing all payments made and charges to the account at issue, and any agreement assigning the account at issue to Plaintiff. In the alternative, the Court should enter an order pursuant to Code of Civil Procedure section 454 precluding Plaintiff from offering any such evidence at trial.

 

Date

Defendant

 

By String

Defendant In Pro Per

 

 

DECLARATION OF STRING IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSE TO DEFENDANTS BILL OF PARTICULARS OR, IN THE ALTERNATIVE, TO PRECLUDE EVIDENCE AT TRIAL

I, String, declare as follows:

 

I am the Defendant in the above-entitled proceeding. I have personal knowledge of the following facts, and if called as a witness, I could and would competently testify thereto.

 

1. On DATE, Defendant served on Plaintiff’s attorney, Mandarich Law Group, LLP – a Demand for Bill of Particulars. A copy of the Demand for Bill of Particulars and a copy of the proof of service are attached hereto as Exhibit “A.”

 

2. By letter dated DATE, Defendant received Plaintiff’s refusal to provide a response to Defendant’s Demand for Bill of Particulars. A copy of Plaintiff’s response is attached hereto as Exhibit “B.”

 

3. On DATE, Defendant sent a letter to Plaintiff’s attorney Mandarich Law Group, LLP in an attempt to meet and confer regarding the refusal to provide responses to Defendant’s Demand for Bill of Particulars. A copy of the DATE letter is attached hereto as Exhibit “C.”

 

4. By letter dated DATE, Defendant received Plaintiff’s response to his DATE letter. Plaintiff continued to refuse to provide a response to Defendant’s Demand for Bill of Particulars, but provided a generic and redacted Bill of Sale which has no reference to the alleged account in question, but does reference a Purchase Agreement – which was not provided by Plaintiff; a computer-generated printout that merely has Defendant’s basic information, and information about the account at issue; two copies of an Account Statement for “WhoDat” (a person unknown to Defendant); one Account Statement bearing Defendant’s name (and showing balance of $0.00); and a generic GE MONEY BANK Credit Card Agreement which makes no reference to Defendant. A copy of Plaintiff’s response, and all attached documents is attached hereto as Exhibit “D.”

 

5. On DATE, Defendant sent a final meet and confer letter extending additional time for Plaintiff to respond fully to the Demand for Bill of Particulars and advising Plaintiff that Defendant would seek relief from this Court if Plaintiff failed to so respond. A copy of this letter is attached hereto as Exhibit “E.”

 

6. No response has been received by Defendant from Plaintiff regarding Defendant’s DATE letter. 

 

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 was executed on DATE at Los Angeles, California.

 

 

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Scum law firm has filed a Request for Entry of Default, claiming I did not respond to the lawsuit.  Clearly wrong, and they know it.  Two questions:

 

1) Is there a procedure I need to follow to make sure it doesn't go thru?  Maybe by filing an Opposition to Request ....  Or is it something the clerk/judge will see as obviously incorrect b/c I did file a General Denial (and cross-complaint), and therefore I don't need to do anything?

 

2) Any way to put a hurt on them for it?  I.e, can I request sanctions, or consider it a violation (of FDCPA, or other)?

 

Thanks!

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Scum law firm has filed a Request for Entry of Default, claiming I did not respond to the lawsuit.  Clearly wrong, and they know it.  Two questions:

 

 

2) Any way to put a hurt on them for it?  I.e, can I request sanctions, or consider it a violation (of FDCPA, or other)?

 

Thanks!

That's exactly what I was thinking; I would find a way, or make one. The FDCPA violation or added cross complaint or something like that would be better than the sanctions (since the sanctions would go to the court). However you could ask that the sanction be that they should be barred from bringing this suit under the doctrine of clean hands as they are litigating with dirty hands (that was not the honest mistake they will claim it to be) .

 

I think you answered your own question on the first one (and this one too) so you are definitely on the right track. File an opposition to the motion for default; and use what they have done here against them. Make it a big deal and it will be treated as one. This is a good opportunity to put pressure on them and gain leverage.

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