lstein89

Summons from Mandarich for Cach LLC

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Hi guys,
 

Great site. I've been working to clean up my credit since I got into a bit of a financial mess a few years back. I'm down to my last account ro resolve.

 

I received the summons on May 2 from Mandarich for Cach, LLC. The "packet" consisted of 11 pages stapled together:
 

  • Summons
  • Civil Case Cover Sheet
  • Instructions
  • 4-page Complaint (Unverified)
  • Declaration of Venue
  • Declaration In Support of Reduced Filing Fee
  • Notice of Case Assignment (department only, no judge)
  • Notice of Eligibility to eFile and Assignment to Imaging Department

 

As far as I can see, none of these list any dates for CMC or trial.

 

They're suing for Breach of Contract and Commons Counts (Account Stated) on a GE Money Bank account. I have my answer filled out and ready to serve and file. I've got 30 days, which falls on Saturday June 1, so I've got til Monday June 3.

First off, I live in a house with 4 other roommates. The summons wasn't delivered to me personally. I came downstairs to go to work one morning and found the packet sitting by my door. I don't know when it actually came, if it was left at the door or if someone in the house accepted it. As I understand what I'm reading in CCP415.10 and CCP415.20, if the summons isn't delivered to me personally, then they have to follow up by mailing a copy to me. Service isn't complete until 10 days after mailing. Is this correct? Is that when my 30 days to answer starts, or when I received the packet that I have now? I'm asking because it's now 10 days and nothing at all in the mail.

The Registrar of Actions doesn't show proof of service has been filed.

I'm also confused since there's nothing else in the packet. No contract, no statement, no bill of sale from the OC. Nothing... And the account number in the complaint only shows the last 4 of the account number - obviously, leaving me no choice anyway but to file a denial based on the information in the complaint, though I know they do have the full account number, since it's listed on the notices from Mandarich.

 

Just seems strange to me. Is this normal?
 

When do I send BOP? With answer?

 

 

Thanks in advance.

 

1. Who is the named plaintiff in the suit? Cach, LLC

2. What is the name of the law firm handling the suit? Mandarich Law Group LLP

3. How much are you being sued for? $1521 + 10%/yr interest since Feb 2011 (charge-off date) + attorney's fees

4. Who is the original creditor? GE Money Bank

5. How do you know you are being sued? Received summons

6. How were you served? Found the packet at by bedroom door

7. Was the service legal as required by your state? Not sure

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Back in December, spoke to someone from prior "law firm" (from Massachusetts - huh???) who was allegedly representing them. But never agreed to any amount or promised payment.

9. What state and county do you live in? CA - San Diego

10. When is the last time you paid on this account? Never made any payments since account opened in April 2010

11. What is the SOL on the debt? 4

12. What is the status of your case? Served (maybe not proper?)

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? 30 days (20 left)
We need to know what the "charges" are. Please post what they are claiming. (1) Breach of Contract, and (2) Commons Counts (Account Stated)
Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

16. What evidence did they send with the summons? None
 

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Non verified you can answer with a general denial.  Then I would ask for a complete Bill of Particulars.  They need to send you a complete one since they are suing you for breach of contract.  It should include accounting of entire history of account.  Also you will need to check on the last statement to see if it is a 0 balance showing account is closed, very important for the account stated theory.  Once you get that, we can go from there. :)

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Hi guys,

 

Great site. I've been working to clean up my credit since I got into a bit of a financial mess a few years back. I'm down to my last account ro resolve.

 

I received the summons on May 2 from Mandarich for Cach, LLC. The "packet" consisted of 11 pages stapled together:

 

  • Summons
  • Civil Case Cover Sheet
  • Instructions
  • 4-page Complaint (Unverified) You can use the General Denial Form PLD-010
  • Declaration of Venue
  • Declaration In Support of Reduced Filing Fee
  • Notice of Case Assignment (department only, no judge)
  • Notice of Eligibility to eFile and Assignment to Imaging Department

 

As far as I can see, none of these list any dates for CMC or trial. The CMC dhearing and judge assignment happens after you answer the complaint and the Trial date is set at your CMC hearing.

 

They're suing for Breach of Contract and Commons Counts (Account Stated) on a GE Money Bank account. I have my answer filled out and ready to serve and file. I've got 30 days, which falls on Saturday June 1, so I've got til Monday June 3.

First off, I live in a house with 4 other roommates. The summons wasn't delivered to me personally. I came downstairs to go to work one morning and found the packet sitting by my door. I don't know when it actually came, if it was left at the door or if someone in the house accepted it. As I understand what I'm reading in CCP415.10 and CCP415.20, if the summons isn't delivered to me personally, then they have to follow up by mailing a copy to me. Service isn't complete until 10 days after mailing. Is this correct? Is that when my 30 days to answer starts, or when I received the packet that I have now? I'm asking because it's now 10 days and nothing at all in the mail.

The Registrar of Actions doesn't show proof of service has been filed. You can file a Motion to Quash for how it was serve. Then, I believe they will just re-serve it to you the proper way. If you answer and/or send a BOP , that will tell them you accepted it that way.

I'm also confused since there's nothing else in the packet. No contract, no statement, no bill of sale from the OC. Nothing... And the account number in the complaint only shows the last 4 of the account number - obviously, leaving me no choice anyway but to file a denial based on the information in the complaint, though I know they do have the full account number, since it's listed on the notices from Mandarich.   That's why the lawsuit is based on Common Counts. They don't have to attach anything. You file a Demurrer, which will force them to give more info. There is a member on this board who wrote a very good one. Look Up Demurrer on this forum.

 

Just seems strange to me. Is this normal? This JDB and  ALL other JDB's are bottom feeders...Yes this is normal

 

When do I send BOP? With answer? You don't have to wait to send BOP with answer.

 

 

Thanks in advance.

 

1. Who is the named plaintiff in the suit? Cach, LLC

2. What is the name of the law firm handling the suit? Mandarich Law Group LLP

3. How much are you being sued for? $1521 + 10%/yr interest since Feb 2011 (charge-off date) + attorney's fees

4. Who is the original creditor? GE Money Bank

5. How do you know you are being sued? Received summons

6. How were you served? Found the packet at by bedroom door

7. Was the service legal as required by your state? Not sure

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Back in December, spoke to someone from prior "law firm" (from Massachusetts - huh???) who was allegedly representing them. But never agreed to any amount or promised payment.

9. What state and county do you live in? CA - San Diego

10. When is the last time you paid on this account? Never made any payments since account opened in April 2010

11. What is the SOL on the debt? 4

12. What is the status of your case? Served (maybe not proper?)

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? 30 days (20 left)

We need to know what the "charges" are. Please post what they are claiming. (1) Breach of Contract, and (2) Commons Counts (Account Stated)

Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

16. What evidence did they send with the summons? None

 

Welcome,

 

And see reply above.

 

HTH

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Keep checking to see the proof of service.  In these cases, what matters is how Plaintiff says you were served. 

 

Personally, I don't think it makes sense to file a motion to quash.  That motion would have your address on the top and plaintiff would serve you properly thereafter.  You would also risk making the Judge a bit angry since there really isn't much point to the motion other than serving you correctly.

 

If the proof of service is incorrect, you might have grounds for a cross complaint.

 

You can start getting your responsive documents in order.  That would be a general denial (http://www.courts.ca.gov/documents/pld050.pdf ) and also a BOP. 

 

Good luck.

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 You would also risk making the Judge a bit angry since there really isn't much point to the motion other than serving you correctly.

 

 

Oh no...you don't want to piss off the Judge.... :catholic: You're asking for your own Death Sentence...

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Hi guys,

Sorry I haven't been able to get back to this. Hectic couple of weeks. Thanks for your replies.

Yeah, I wasn't planning on challenging the summons/service, though they did file POS as "personal" service... That's supposed to mean that they (or their server) actually saw me personally and handed me the summons & complaint? That's a lie. But seems to me that challenging it when it ultimately had no effect on my ability to respond in a timely manner would just be pointless and annoying, and would just give them more time to get their ducks in a row if they're going to.

I got my answer/BOP/POS sent and answer/POS filed... A little later than I wanted to but still well within the 30-day limit.

To be prepared, I'm drafting 2 M&C letters - one if they respond with denial, one if they don't respond at all. That's just standard business letter format, correct - not pleading paper like BOP? And do I need POS for that or just CMRRR?


Thanks

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Hi guys,

Sorry I haven't been able to get back to this. Hectic couple of weeks. Thanks for your replies.

Yeah, I wasn't planning on challenging the summons/service, though they did file POS as "personal" service... That's supposed to mean that they (or their server) actually saw me personally and handed me the summons & complaint? That's a lie. But seems to me that challenging it when it ultimately had no effect on my ability to respond in a timely manner would just be pointless and annoying, and would just give them more time to get their ducks in a row if they're going to.

I got my answer/BOP/POS sent and answer/POS filed... A little later than I wanted to but still well within the 30-day limit.

To be prepared, I'm drafting 2 M&C letters - one if they respond with denial, one if they don't respond at all. That's just standard business letter format, correct - not pleading paper like BOP? And do I need POS for that or just CMRRR?

Thanks

If you like I can forward you everything from my case meet and confers are easy short and sweet. Have you filed your general denial. I have a great one that was used for 2 cases. Let me know or message me privately. We are both dealing with the same folks here! There are also folks on here that have everything from the their cases posted start to finish and ended with success. AST Medic is a good one!

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OK, so now it's been 10days +5. They haven't answered my BOP - not even a Distefano response.

One of the collection agents from Mandarich DID call me near the end of the day today with 2 offers to settle... First was lump sum settlement of a bit more than the amount demanded in the complaint (but foregoing lawyer's fees, interest, etc), and the second was an amount 40% more than that which they'd let me pay off over several months. I told her "I am busy at work and can't talk right now. (which was true) I'll call back when I'm free."

 

I know they're not offering to settle to do me any favors. If they truly had a case, it doesn't cost them anything to pursue it in court for full value since they're asking for attorney and court fees as part of the judgement. Seems the only reason to offer a settlement after filing a lawsuit is that they don't have a pursuable case.
 

Thoughts/Recommendations? Send M&C or consider this a refusal and just go straight to MTC/MTP? How should I handle it when I call back, or should I call back?

 

Thanks,

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If you don't receive a response by Monday, consider sending a meet and confer letter for your BOP.  You don't need to return the phone call if you don't want to.  and it will be hard for you to evaluate any offer of settlement until you learn what evidence plaintiff has.

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If the Complaint is unverified, could one not do a motion to strike it? As an unverified complaint means that there are no facts in the case? 

"Trinsey v Pagliaro, D.C.Pa. 1964, 229 F.Supp. 647. "Statements of counsel in brief or in argument are not facts before the court and are therefore insufficient for a motion to dismiss or for summary judgment." Pro Per and pro se litigants should therefore always remember that the majority of the time, the motion to dismiss a case is only argued by the opposing attorney, who is not allowed to testify on the facts of the case, the motion to dismiss is never argued by the real party in interest."

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If the Complaint is unverified, could one not do a motion to strike it? As an unverified complaint means that there are no facts in the case? 

"Trinsey v Pagliaro, D.C.Pa. 1964, 229 F.Supp. 647. "Statements of counsel in brief or in argument are not facts before the court and are therefore insufficient for a motion to dismiss or for summary judgment." Pro Per and pro se litigants should therefore always remember that the majority of the time, the motion to dismiss a case is only argued by the opposing attorney, who is not allowed to testify on the facts of the case, the motion to dismiss is never argued by the real party in interest."

 

No.  In California, a complaint need not be verified unless specifically required by statute.  A complaint does not have "evidence".  It is a concise statement of the claim.  Evidence is used in motions and at trial.

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So while a Complaint doesn't contain evidence, it still contains facts/allegations.   Without verification, 'there are no facts/allegations' (which I believe are differnt than 'evidence'.

 

Cal CCP section 446 requires verification, with caveat.   Attorney can verify complaint if Plaintiff is out of county, though tons of higher court decisions state that (due to mail, email, etc) unless there is an inability for a plaintiff to verify, attorney's can't verify.

 

CCP 436 The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a)Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b)Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

 

 

Thoughts/comments?  I'd like to understand this more.   I'm way past being able to motion to strike in my JDB case, but there's always next time.... :-)

 

 

CCP 446. (a) Every pleading shall be subscribed by the party or his or
her attorney. When the state, any county thereof, city, school
district, district, public agency, or public corporation, or any
officer of the state, or of any county thereof, city, school
district, district, public agency, or public corporation, in his or
her official capacity, is plaintiff, the answer shall be verified,
unless an admission of the truth of the complaint might subject the
party to a criminal prosecution, or, unless a county thereof, city,
school district, district, public agency, or public corporation, or
an officer of the state, or of any county, city, school district,
district, public agency, or public corporation, in his or her
official capacity, is defendant.

 

When the complaint is verified, the
answer shall be verified. In all cases of a verification of a
pleading, the affidavit of the party shall state that the same is
true of his own knowledge, except as to the matters which are therein
stated on his or her information or belief, and as to those matters
that he or she believes it to be true; and where a pleading is
verified, it shall be by the affidavit of a party, unless the parties
are absent from the county where the attorney has his or her office,
or from some cause unable to verify it,
or the facts are within the
knowledge of his or her attorney or other person verifying the same.
When the pleading is verified by the attorney, or any other person
except one of the parties, he or she shall set forth in the affidavit
the reasons why it is not made by one of the parties.

When a corporation is a party, the verification may be made by any
officer thereof.
When the state, any county thereof, city, school
district, district, public agency, or public corporation, or an
officer of the state, or of any county thereof, city, school
district, district, public agency, or public corporation, in his or
her official capacity is plaintiff, the complaint need not be
verified; and if the state, any county thereof, city, school
district, district, public agency, or public corporation, or an
officer of such state, county, city, school district, district,
public agency, or public corporation, in his or her official capacity
is defendant, its or his or her answer need not be verified.
When the verification is made by the attorney for the reason that
the parties are absent from the county where he or she has his or her
office, or from some other cause are unable to verify it, or when
the verification is made on behalf of a corporation or public agency
by any officer thereof, the attorney's or officer's affidavit shall
state that he or she has read the pleading and that he or she is
informed and believes the matters therein to be true and on that
ground alleges that the matters stated therein are true. However, in
those cases the pleadings shall not otherwise be considered as an
affidavit or declaration establishing the facts therein alleged.

A person verifying a pleading need not swear to the truth or his
or her belief in the truth of the matters stated therein but may,
instead, assert the truth or his or her belief in the truth of those
matters "under penalty of perjury."

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CCP 446 does not say that every pleading must be verified.  It just says WHEN it must be verified, an attorney can do it for the client under the circumstances described in the statute.  And CCP 446 (a) gives you examples of when an answer must be verified (when the state, etc. is plaintiff) and when it need not be (when a state sues a county, etc.).  There are many other examples in the statutes when a complaint must be verified.  If you are really interested and want to read more, Check out Witkin on California Law at your local law library.

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If you don't receive a response by Monday, consider sending a meet and confer letter for your BOP.  You don't need to return the phone call if you don't want to.  and it will be hard for you to evaluate any offer of settlement until you learn what evidence plaintiff has.

 

calawyer, thank you. That's basically where I am headed at this point. Plaintiff has done nothing so far but make boiler plate accusations. They have yet to provide a single document supporting their allegations or even a complete account number. Assuming I'm your average Joe who doesn't keep good records... I've never once spoken with the plaintiff who may or may not be authorized to collect this debt... And I've only been given the last 4 of an account number for a creditor I never heard of (different name than the brand under which the account was sold)... How could I possibly be expected to know what the heck they're talking about?

 

Anyways... Started a new job last week and spent the week in meetings, lunches with management, training, in conference calls with people on the other side of the world when I should have been sleeping, etc. As a result, I slipped up and wasn't able to get out while the post office was open to get M&C out and played phone tag with Mandarich a couple of times.

As of today, registrar of actions reports the case was ordered to mandatory settlement conference. I downloaded the documents. Looks like no big deal... Send the statement 5 days before, go in and basically say "I'm not going to pay on a debt that is not mine, or that the plaintiff is not authorized to collect. So I'll settle for dismissal at this time since the plaintiff hasn't provided a single shred of documentation to support their claim."

 

I can still go for MTC/MTP, right? Just probably better to wait til settlement conference now? Here's what I've got for the M&C I'll finally get out tomorrow:

 

 

On <bop_date>, defendant served to your office, as the attorney of record for Plaintiff, pursuant to CCP 454, a request for a Bill of Particulars detailing the alleged account on which Plaintiff’s claim is based. Rather than provide the requested Bill of Particulars, Plaintiff responded with a settlement offer which was conveyed to defendant via telephone from your office on <call_date>. As outlined below, defendant finds Plaintiff’s response wholly inappropriate for this request.

 

Plaintiff alleges a GE MONEY BANK open book account as the basis for Plaintiff’s demand. Yet Plaintiff failed to attach to the complaint, or provide to defendant on request, a single document to show good cause to believe the alleged account or the amount which Plaintiff demands is valid and accurate, or that Plaintiff has legal authority to collect on the alleged account. Defendant is perplexed as to why Plaintiff would seek a monetary settlement at this juncture without demonstrating reasonable belief that Plaintiff’s claim is valid.

 

In light of this, at this time defendant would accept a settlement under the following conditions:

  1. Plaintiff agrees to immediately move the court to dismiss Plaintiff’s lawsuit
  2. Plaintiff agrees to not seek any further collection or legal action against defendant in this matter
  3. Plaintiff agrees to immediately remove any and all negative entries which Plaintiff has placed on defendant’s credit report
  4. In return, defendant agrees to not seek recovery of damages which defendant has already incurred as a result of responding to Plaintiff’s claim.
Should Plaintiff choose to accept this settlement offer, please furnish defendant with written confirmation of Plaintiff’s acceptance of these terms. If Plaintiff chooses to continue litigation, please provide within 10 days and without objection a complete response to defendant’s requested Bill of Particulars.

 

 

 

Any constructive criticism? The plaintiff's attorney is listed as "Mandarich Law Group, LLP". Should I address this directly to the attorney who signed the complaint, or just to Mandarich Law Group?

 

 

Thanks,

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