GOING TO TRIAL IN CALIFORNIA

[HomelessInCalifornia]

Thank you in advance to anyone who can help. I am in over my head and don't know what I am doing.

 

I have been unemployed since 2009, lost my home and virtually everything I own (other than my car and my clothes, I have nothing), I have no income, I live on food stamps and in a room provided by my 75 yo father (I am 53), and am now in a lawsuit for debt collection (from a junk debt collector who bought the account) in California. I have to have my car or I have no way to get groceries or go to the doctor or hunt for work or get myself or my father to the hospital in case of emergency. (I think the car will probably meet the limits of the vehicle exception and if not can very easily be covered along with everything else I own under the unused portion of a Homestead Exemption if it came to that, but I just don't want to deal with this and cannot risk losing the vehicle. It's all I have left.)

 

I went to the Riverside County Bar Association and was referred to Public Law Service Corporation (Legal Aid), who helped me prepare an Answer with a General Denial.

 

I received discovery requests as I was told I might and spoke to an attorney at Legal Aid who told me he would send me some template responses.  He never did.

 

I had to answer discovery on my own as Legal Aid never got back to me (even with consistent phone calls over the course of a month and several conversations with the paralegal).

 

I am grateful for the aid I did receive from Legal Aid, but their "disappearance" left me dangling in the air. (Yes, I am very quiet and soft-spoken and polite, so being ignored has left me very confused.)

 

As I wanted to know plaintiff's evidence/case, I had to prepare discovery on my own. I am not a lawyer. I did not know about the limitation on the number of discovery requests and sent well over the 30. Plaintiff only responded to the first 30 RFP and declined the rest, but I think their response is adequate for my case.

 

I have no idea what I am doing. Settlement Conference and Trial are in 4 weeks, and I have questions. I own nothing and even getting to the court is a hardship on me (I have to borrow gas money just to do it.) I really need help badly.

 

Complaint was for breach of contract and  common counts, filed in Riverside County Superior Court  (Larson Justice Center - Indio). It was NOT verified. There is no affidavit. No agreement was attached.

 

Does an Agreement have to be attached to the Complaint in California?  If so, according to what Code or Rule?

 

In their discovery response, Plaintiff CLAIMED to be providing a copy of the agreement commonly used by the original creditor at the time of claimed issuance (but not the original contract or anything signed by me). However, they did NOT even provide the copy of the agreement "commonly used" (or any agreement at all).

 

They admit they have no original contract or copy thereof. They claim that is just as easy for me to acquire as them.

 

In their original complaint they claim that the original credit application was made either "executed and delivered" to original creditor or made over the telephone or internet, but they do not specify which.

 

They also claimed to be providing a copy of a credit application signed by me, but it was NOT attached either.

 

Is there a rule or code precluding them from submitting those into evidence at trial?  If so, what is it?

 

They attached statements for one year, which showed no transactions, just a running total of a balance accruing interest and my name and address, and there were payments recorded on the first two statements.

 

They also provided copies of Assignment and Bill of Sale on the Account to CACH LLC from original creditor, an Affidavit of Sale of Individual Account, copies of "standard" correspondence they send to Defendant in these cases (including a Notice of Intent to Sue 1033 letter) (without my name or address or their signature on them), and a "Redacted Loan Schedule" (which I have no idea how to read).

 

None of the exhibits they provided in their response are labelled in their responses as to what document correspondents to what request, are not separated, and have not been stamped with any page number for reference).

 

MSC and Trial are in 4 weeks.

 

I need to know what to do/argue/whatever next. PLEASE HELP.

 

 

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 Law Group LLP

3. How much are you being sued for?

    - $2400 +

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

    - HSBC Bank Nevada, N.A. & Its Affiliates

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)

    - In person

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, Riverside

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

    - According to their claim, in 2011

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 looking it up online (many states have this information posted - when you find the online court site, search by case number or your name)

    - Complaint filed: 02/04/13; Summons & Complaint served: 02/09/13
    - General denial (PlD-C-010 form) Answer filed: 02/13/13

    - Plaintiff's RFA, Special Interrogatories, and RFP served 02/18/13

    - Defendants Answers to RFA, Special Interrogatories, and RFP served 03/25/13

    - Defendant's RFA, Special Interrogatories, and RFP served 03/25/13

    - Plaintiff's Answers to RFA, Special Interrogatories, and RFP served 04/25/13

    - MSC scheduled for 06/13/13

    - Trial scheduled for 06/13/13

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.)

    - No

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.

    - Already responded

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

 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.

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 summons or complaint.

 

 

I am DEEPLY, DEEPLY, DEEPLY grateful for any and all assistance.  Thank you.

 

HomelessInCalifornia

 

[helpme]

Welcome homelessinCA,

You came to the right place. Since they are suing you for breach of contract, you can send them a Request for Bills of Particulars. In this request you are asking for them to itemize from 0 bal up to the damages and provide statements proving it. Check out my thread Its Official -We won against EAF. In there are links to information on contracts.

You have 30 days from the time you were served to answer the complaint or they will be by reason of default. You can use tge general denial form pld-010 or pld-050, not quite sure but look it up.

Start your calendar. Mark when you received things from them, when you sent things to them and when things are DUE.

If you cant find the template for bills of particulars post again.

[Amerikaner83]

I don't know much about California-specific law, but you should search for posts made by a member CALAWYER.

 

 

 

 

The burden of proof is upon them to prove the terms of the account, not on you.  As such, it is their responsibility to dredge up an original contract or credit application.  Not your issue if they do not.  (and if they do not, I'd tell the Judge something to the effect of "your honor, they're referencing documents not introduced as evdence". 

 

They're suing you for breach of contract, they have to provide said contract.

 

 

Although, I'm not sure if they have to be sent to you or just filed with the Court.  Does Riverside have online court registers you can look up the status of your case and see what's been filed and what-not?  If not, (hell, even if yes) I'd go down to the courthouse and pull the case files.

[HomelessInCalifornia]

Thank you, Amerikaner and Help Me.

 

I am trying to find a link with a sample "Request for Bill of Particulars" (preferably for a credit collection lawsuit) in California, but have struck out so far.  Does anyone have a link where I can find one?

 

Also, does that Request count against the 30 discovery requests limitation?  If so, I've exceeded that number already. 

 

Trial is in 4 weeks. If I can prepare and serve a Request for Bill of Particulars by mail within the next few days, is that considered giving adequate response time?

 

Riverside County does have an online Court Register.  However, it is not a free service. I literally have a $0 income and $0 asset balance (other than my car). The court is a 40 minute drive away, and that's gas money used against any cash i borrow from my father for food.  ($200 in food stamps per month does NOT feed anyone.) However, I would think if the Plaintiff is filing or submitting anything to the court, they are required by law to provide Defense (me) with a copy anyway.  I sure hope so.

[shellieh98]

helpme's thread would be most beneficial, shehas even posted all the motions, etc used at trial, so you could redact them. go there now.

I would request the BOP ASAP, and make sure it is complete.  They can't include anything into evidence against you unless it is in their ccp96, which locks them into the evidence they have. You can request their ccp96 I think 45 days before trial? go read helpme's thread, it is all layed out pretty well there, and then post questions as you go along.

[helpme]

Thank you, Amerikaner and Help Me.

 

I am trying to find a link with a sample "Request for Bill of Particulars" (preferably for a credit collection lawsuit) in California, but have struck out so far.  Does anyone have a link where I can find one?

 

Also, does that Request count against the 30 discovery requests limitation?  If so, I've exceeded that number already. 

 

Trial is in 4 weeks. If I can prepare and serve a Request for Bill of Particulars by mail within the next few days, is that considered giving adequate response time?

 

Riverside County does have an online Court Register.  However, it is not a free service. I literally have a $0 income and $0 asset balance (other than my car). The court is a 40 minute drive away, and that's gas money used against any cash i borrow from my father for food.  ($200 in food stamps per month does NOT feed anyone.) However, I would think if the Plaintiff is filing or submitting anything to the court, they are required by law to provide Defense (me) with a copy anyway.  I sure hope so.

 

 

Go to my thread, I posted a Request for BOP. You will need to tailor it to your case.http://www.creditinfocenter.com/community/topic/320238-its-official-we-won-against-eaf/?p=1243889

[calawyer]

Welcome.  You can win this case and all you have to invest is time. 

 

THe most important thing for you to do is serve a CCP 96 request.  Here is the form:  http://www.courts.ca.gov/documents/disc015.pdf

 

 

It must be served on the plaintiff's lawyer (you should do a proof of service) between 30 and 45 days beofre trial.  THis will require plaintiff to give you all of the evidence it intends to use at trial or it will be precluded from doing so.  You will get some lame declarations in response and we will help you try to get them excluded.  Then, plaintiff will be left without a case.

 

THe second thing you should do is read up.  1111girl had almost exactly the same facts as you.  SHe won both trials.  Helpme and ASTMedic's threads are great too and have lots of sample documents you should read and understand.

 

Good luck.

[HomelessInCalifornia]

OMG ... you people are awesome!  I am so thankful. I've been feeling like I am drowning. Frankly, I look at all the legalese and my brain hurts.

 

I will get on the Bill of Particulars and a CCP 96 request today. I will do a proof of service. I will have to serve by mail, as Plaintiff's attorneys are several hours drive away.

 

Again, thank you!

 

I have been reading about a meet and confer being required, but I have heard nothing about it from the court or from the Plaintiff. Is that something I need to schedule? And there is some kind of statement I have to file after it?

[Anon Amos]

Hey Homeless, it looks like your on the right track now with the ccp 96, but you mentioned you requested over 30 request for production (and they responded) so you may not need the BOP (depending on what they produced).

[Rivertime]

I will get on the Bill of Particulars and a CCP 96 request today. I will do a proof of service. I will have to serve by mail, as Plaintiff's attorneys are several hours drive away.

 

 

If you can possibly afford it, send your CCP 96 request by overnight carrier, I used UPS and will cost you about $20 to $30.  You do this, if you can, because plaintiff has 20 days plus 5 days for mailing to respond for a total of 25 days to respond but if you send it overnight carrier, plaintiff only get 20 + 2 court days to respond.  In my case, planitiff responded on the 25th day and I was able to argure plaintiff could offer no evidence at trial.  It worked and I won.  Just another angle to help win but there is pleanty you can do beat these guys.

 

Good Luck,

 

rt

[Rivertime]

I don't know that you have time for a BOP but to answer your question, a BOP is not considered discovery so it does not count as part of your request limit, at least that is my recollection.

 

Here a link to a BOP if you want to send one, just edit the areas between the [ ] as needed for your case.

 

rt

[HomelessInCalifornia]

Thank you, Rivertime!  Unfortunately, $20 to $30 is more than I have. But thank you for the tip! I am on my way to the Post Office now.

[admin]

Good luck and just remember you can do it!  

[helpme]

Homeless,

 

Added the Consumer Protection to my thread...just post whatever else you need help in....

[HomelessInCalifornia]

Thank you, all for the well wishes and positive thoughts and very helpful advice.

 

I take it that, unlike many other states, California does NOT require a copy of the agreement be attached to the complaint, as I haven't heard any input on that question. So, I'll hold off on trying to cobble together a Motion to Dismiss based on that.

 

i got the Demand for BOP in the mail today, along with the CCP 96 request.

 

Thank you, Helpme, for the input and making those documents available. I've downloaded them all. I will be reading up on the local rules and be reading the other materials over the course of this week.

 

Per Calawyer, I'll look for 1111girl's thread tomorrow as well.

 

I take it for now I need not prepare for or schedule a Meet and Confer. I've received no notice scheduling or requesting one from the Plaintiff or from the Court.

[helpme]

Thank you, all for the well wishes and positive thoughts and very helpful advice.

 

I take it that, unlike many other states, California does NOT require a copy of the agreement be attached to the complaint, as I haven't heard any input on that question. So, I'll hold off on trying to cobble together a Motion to Dismiss based on that.

 

i got the Demand for BOP in the mail today, along with the CCP 96 request.

 

Thank you, Helpme, for the input and making those documents available. I've downloaded them all. I will be reading up on the local rules and be reading the other materials over the course of this week.

 

Per Calawyer, I'll look for 1111girl's thread tomorrow as well.

 

I take it for now I need not prepare for or schedule a Meet and Confer. I've received no notice scheduling or requesting one from the Plaintiff or from the Court.

 

You will be getting a CCP 98 from them within the next couple weeks or so....the only time you need to meet and confer is when you plan to file a motion (except MIL that doesn't require a m&c letter), or if you don't like a particular answer to your discovery like the RFP's or when you get an insufficient response to your BOP....but wait until they respond to your CCP 96, then post what they sent you...then you will be able to build your case...until then catch up on your reading....

[Rivertime]

If you recieve plaintiff's CCP 98 and the proof of service is dated after the 14th, that is yet another reason that it should be dissallowed.  Here's the statute:

 

CCP 98

A party may, in lieu of presenting direct testimony, offer the prepared testimony of revelant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

 

(a)A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

 

(b)The statement is in the form of all or part of a deposition in the case, and the party against whom it is offered had an opportunity to participate in the deposition.

 

The court shall determine whether the affidavit or declaration shall be read into the record in lieu of oral testimony or admitted as a documentary exhibit.

 

A CCP 98 document must comply with all the requirement of (a) for it to be allowed.  This is a statutory exception to the heaesay rule.  If it does not comply and you object, it should be tossed as hearsay.

 

rt

[calawyer]

Thank you, all for the well wishes and positive thoughts and very helpful advice.

 

I take it that, unlike many other states, California does NOT require a copy of the agreement be attached to the complaint, as I haven't heard any input on that question. So, I'll hold off on trying to cobble together a Motion to Dismiss based on that.

 

In California, the complaint must either state the material terms of the contract or attach a copy.  Your complaint might do the former.  But remember this for trial.  If plaintiff puts on its case and then rests and does not prove the contract, you should pop up and ask the Court for judgment in your favor on the breach of contract claim.  Why?  BEcause the Court has heard absolutely no evidence about a contract.  And this is really important because without a contract, plaintiff should not get the contractual rate of interest and it should not get attorneys' fees either.  Plaintiff's right to both is usually founded upon a contractual provison.

 

i got the Demand for BOP in the mail today, along with the CCP 96 request.

 

Excellent.  Keep the proof of service for the CCP 96 in case plaintiff says it didn't receive it.

[HomelessInCalifornia]

Thank you, Rivertime and Calawyer.

 

I can see I'll have to organize a binder of some kind for trial to keep all this straight. The next few days I am dedicating to reading Local Rules and 1111girl's thread.

 

It sounds like my best use of time till Plaintiff supplies me with a response to the BOP and CCP 96 and sends me a CCP 98 is to do research.

 

If I understand this correctly, due to my service by mail on May 8, 2013 of BOP and CCP 96 and by law, Plaintiff must serve:

 

        CCP 98  on or by May 14, 2013 (so I should expect to see that date or earlier on the POS and it probably won't arrive out here till 05/19/13)

 

        Response to Demand for BOP on or by May 18, 2013 (so I should expect that date or earlier on the POS and it probably won't arrive here till 05/23/13).

 

        Response to Request for Statement of Witnesses and Evidence (CCP 96) on or by May 28, 2013 (so I should expect that date or earlier on the POS

        and it probably won't arrive here till 05/23/13).

 

I'll have to create a calendar for all this.

 

Thank you!

[calawyer]

A party gets 5 extra days to respond to something that is served by regular mail.  So add 5 more days to the BOP and CCP 98 responses.

[Aticnib]

Hi.  I put up on a thread the following to use as templates:  Motion in Limine, Declaration to MIL, Sworn Denial, Declaration to Sworn Denial.  Feel free to use those.  If you PM me, I can proof read your documents and help you with what you have to do.  I'm not a lawyer but got a lot of help on this board.  Just paying it forward.

[Aticnib]

Just cought up on the thread.  Looks like you got great advice.  Please DO NOT FORGET the Sworn Denial!!!  That along with the CCP96 will help you win.In my case they never responded to the CCP96 and asked for dismissal with prejudice after the sworn denial and I subpoenaed their only witness.  You will win this thing!!!

 

 

 

Sworn Denial.doc

[HomelessInCalifornia]

Ick. 5 days more eh? Thanks for the heads up, Calawyer. That means their response to the CCP 96 isn't due till 06/02, and so I'm not likely to see it before 06/07.  Trial is 06/13.  Not a big window there in which to respond and prepare. 

 

Thanks, Aticnib, I'll look for your thread. I would be very grateful for proofreading assistance. Right now, I think I'm in a research period. Until Plaintiff responds to the Demand for BOP and the CCP 96 and produces a CCP 98 doc, I am in a holding pattern for document preparation I think.

 

Although, I know at some point I'll probably have to prepare a Trial Brief, a Motion for Dismissal, a Proposed Order for Dismissal, and a Motion for Costs prior to trial. I just don't know what to do about any of that as yet.

 

Thanks, Seadragon. I am digging through your links now. I don't know the significance of the case cites in reference to my lawsuit or how to look them up.

 

So far, the most pertinent/intriguing bits of case law I have seen (other than violations of CCP Section 98) are:

 

IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT (Appeal from the Circuit Court of Lake County)
VELOCITY INVESTMENTS, LLC,  v. GREGORY ALSTON, Case No. 07--AR—951

Opinion:

JUSTICE JORGENSEN delivered the opinion of the court:

 

(I don't know how to cite this, so please excuse me. It was referenced in a post in one of the forums here and is full of gems)

 

and

 

CACH, LLC v. Lisa Jones, Case No. LCl16247, Superior Court of California, County of San Luis Obispo, 3/12/12 (JUDGMENT FOR DEFENDANT AFTER TRIAL)

In which the judge notes the need for live testimony, and the failure of exclusion under Section 98 if an address for an affiant is not within 150 miles of the place of trial. (I liked this particularly because this is the same Plaintiff pulling the same nonsense.)

 

As far as I can tell, Plaintiff's case is based entirely on hearsay. There is no signed agreement. A copy of a standard, unsigned agreement does not constitute proof that the agreement was entered into. (Need case law supporting here.) There is no application so far, though they have claimed they are producing one. Even if there is an application and they produce it in response to the CCP 96, that does not constitute documentation of agreement or terms and conditions of said agreement. (Need case law supporting here.) An agreement to agree does not constitute agreement; a letter to agree does not constitute agreement. (Need case law supporting here.) Lacking an agreement, there can be no breach of contract. (Need case law supporting here.)

 

The statements they provide are for one year, show no transactions, and they show no statements prior to that one year. it's as if there is an amount claimed coming out of the blue, with no documentation of consideration in exchange for the claimed debt. What's more, there is no evidence submitted at all proving the statements were even mailed. Nor is there any evidence submitted that defendant ever received said statements. Furthermore, even if statements were mailed and received, a monthly billing statement does not provide evidence of terms and conditions agreed to (including as regards interest rates, charges, and fees) and does not provide any evidence of acceptance and/or ratification of any agreement. (Need case law supporting here, but I know I saw something somewhere on this.)

 

I have to look, but I don't think they even have provided a date when the alleged "account" was opened.

 

The only thing they have which provided which is verified or sworn to in front of a notary is an Affidavit of Sales of Individual Account, but they have not provided an address within 150 miles of the place of trial (or any address for that matter) of the individual who signed the affidavit -- and their affidavit was notarized in Vermont so I'm doubting they are anywhere nearby. Under CCP Section 98(a), I believe that affidavit is inadmissible, so Plaintiff has no means of demonstrating it even was transferred ownership of the alleged 'account."

 

The only witnesses they have identified to date at all are witnesses who can testify as to the business practices of the Plaintiff (not the claimed Original Creditor).

 

If I am looking at this correctly, Plaintiff's case is deplorable, and basically at trial I just have to object on the grounds of hearsay/lack of personal knowledge/irrelevance on everything the plaintiff attempts to enter as evidence, then move for Dismissal with Prejudice and request costs and fees. I presume in those costs I can charge for my time acting as my own attorney -- if so it'll be the first money I've made since 2009. Maybe there is a bright lining to all this. What constitutes reasonable costs & fees?

[Spikey]

Just an FYI, you can't use case law from another state, so that Illinois case isn't applicable.

[HomelessInCalifornia]

Thanks, Aticnib. i have now prepared a Sworn Denial, but am holding onto it.

 

When should I prepare and serve a Sworn Denial?

 

Should I wait till after Plaintiff responds to the Demand for BOP, the CCP 96 request, and/or serves their CCP 98?

 

Or do I need to serve a Sworn Denial right now?  Trial is on 06/13.

 

I haven't even heard of a Sworn Denial before. How much does a notary cost? (Just a fact, not playing for sympathy, but my income is literally the change I find on the street. My bank balance is $0. Every dime I get I have to borrow, so I have to know I really, really need to spend beforehand.)