first time lawsuit

[jono]

Hello all

This is my first lawsuit so please bear with me as I shall have a few more questions later.

 

The SOL date was Dec last year , the lawsuit was filed  July last year the suit was found on my drive with an address that was from another county I lived in 7 years ago

 

I tried to contact the creditor to find out what this was about , reg letter no reply , dispute with CRA no reply and the BBB tried several times no reply . The BBB filed the case as company failed to respond .I have all the letters .

 

Then low and behold a month later I get an email from a lawyer [they could only have got it from the BBB letters ] that says

they are the lawyers for the creditors and if I want to avoid further litigation and costs contact them . I email back and ask

them to verify . Thet then email a copy of the proof of service which is total lie . It has no court stamp and goes on say it was delivered 15 Feb 2013 posted with the court 17 Feb 2013 .

 

Today is the 20 May and the court has no proof of service for this case

 

What I would like to know if somebody can help , is can the SOL just hang there until it goes to court , whats the point in having one if this can happen.

 

Anyway sorry if I went on ,its nice to get some of this off my chest .I am on my own on this one. ps I am in california

[shellieh98]

Good questio for calawyer. I think if there is no proof of service filed with the court, then the lawsuit may not have commenced. They may be SOL. Might be why they didn't get a default if they said they filed proof, not so or they would have the default. He may just be saying that to try to get ou to settle, since it is now a time barred debt.

But I don't know, that would be a question from one of our Cali friends.

[jono]

They could not get a default as I answered the lawsuit.

[Anon Amos]

They could not get a default as I answered the lawsuit.

If they filed the lawsuit before the SOL ran it's toll, then they have met the time frame of the statute, and are within the SOL. They may not have filed a proper POS, but by answering the lawsuit; you are not going to be able to claim you were never served (you will just have to beat then the old fashioned way like the rest of us).

 

Answering the lawsuit was the correct thing to do however, otherwise you would be in default. I would move on to discovery or possibly send a BOP.

[Flyerfan]

Lots of good Cali help on this site. Ask a lot of questions and do a lot of reading. Good luck!

 

It is a very "procedural" state. Very specific forms and tight rules regarding them. I won't pretend to know CA law but the people here do. Stick with them.

[Anon Amos]

 

 

What I would like to know if somebody can help , is can the SOL just hang there until it goes to court , whats the point in having one if this can happen.

 

Anyway sorry if I went on ,its nice to get some of this off my chest .I am on my own on this one. ps I am in california

Yes the SOL will "just hang there" until it goes to trial. The point in having the SOL is that the bottom feeder must FILE a lawsuit BEFORE the SOL runs it's toll, unfortunately in your case it looks like they did (it is common for bottom feeders to file just before the SOL runs out).

Your not really "on your own" with this mess, there is a lot of help here. In Cali we even have our own lawyer watching over and posting...Calawyer

[jono]

Hello and thank you very much , it feels good to know I am not alone.

 

I did a bit of research about Chase on line and if I have it right it states, Chase says in its contract  it goes by the S O L that applies in its home state Delaware. Does anyone know, because if it is true it knocks a year off the California S O L and would take me over the goal line.

[Flyerfan]

Hello and thank you very much , it feels good to know I am not alone.

 

I did a bit of research about Chase on line and if I have it right it states, Chase says in its contract  it goes by the S O L that applies in its home state Delaware. Does anyone know, because if it is true it knocks a year off the California S O L and would take me over the goal line.

 

Good question for @calawyer or @Anon Amos.

[helpme]

Hello and thank you very much , it feels good to know I am not alone.

 

I did a bit of research about Chase on line and if I have it right it states, Chase says in its contract  it goes by the S O L that applies in its home state Delaware. Does anyone know, because if it is true it knocks a year off the California S O L and would take me over the goal line.

Hello,

 

You will need to find the Chase contract with the same year the supposed alleged account was open. If you use any other dated contract, you give them the freedom to use it against you if other things apply on that contract you're reading. Not just the SOL verbage.

 

If on the alleged contract associated with the allege account has the Delaware verbage, then I believe you can. There was a case that used it and won. Can't remember where I read it at the moment. Hopefully, someone in Cali will remember. It was a while back maybe within the past 2 yrs.

[jono]

Thankyou, This account was for an old WAMU that Chase took over .I called Chase and asked them if they could send me validation of this account as they are the ones reporting it with the CRA . They kept saying if I think its fraud to file a fraud complaint . I kept saying I only want you to validate what you report on my CR. They go on to say that it will have to go to the fraud dept to investigate it further . So in the end I tell them that if thats what it takes to validate this , go ahead. I suppose I shall just have to wait and see as they said it could take up till 90 days for them to conclude.

[calawyer]

Hello,

 

You will need to find the Chase contract with the same year the supposed alleged account was open. If you use any other dated contract, you give them the freedom to use it against you if other things apply on that contract you're reading. Not just the SOL verbage.

 

If on the alleged contract associated with the allege account has the Delaware verbage, then I believe you can. There was a case that used it and won. Can't remember where I read it at the moment. Hopefully, someone in Cali will remember. It was a while back maybe within the past 2 yrs.

 

 

Resurgence v. Chambers (2009) 173 Cal App 4th Supp. 1.

[jono]

Very interesting , Thankyou

I do not know whats going on with this case , This creditor did not respond to the BBB the CRA and today I get a registered letter I sent to them weeks ago

returned as undeliverable . I look on line there are numerous mentions for this company with the same address . I got the phone # and called after hours

and got a hours of business message regarding their company . The letter says unable to forward.

[helpme]

Resurgence v. Chambers (2009) 173 Cal App 4th Supp. 1.

Thanks Calawyer...You came to the rescue...

[helpme]

Thankyou, This account was for an old WAMU that Chase took over .I called Chase and asked them if they could send me validation of this account as they are the ones reporting it with the CRA . They kept saying if I think its fraud to file a fraud complaint . I kept saying I only want you to validate what you report on my CR. They go on to say that it will have to go to the fraud dept to investigate it further . So in the end I tell them that if thats what it takes to validate this , go ahead. I suppose I shall just have to wait and see as they said it could take up till 90 days for them to conclude.

 

Chase won't have that information. My case was exactly like yours. Chase couldn't provide anything but one statement but that statement didn't look right so I compelled them (the JDB not Chase) during the Bills of particulars to provide more statements and of course they couldn't, which kind of told me they (JDB)manipulated that statement or Chase didn't get anything when they took over WAMU.

[jono]

Well based on what you good folks have told me I shall send off a bill of particulars . Can I get the form online and do I send a copy to the court?

[shellieh98]

I don't know if the request for BOP is a form online, Im not from cali, but I know others that posted here do know that answer.  Here are the questions to help us understand your case better.

 

For everyone that posts here, it will help us out if you can provide the following information: (revised 02-09-2012)

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

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

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

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

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

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in?

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

11. What is the SOL on the debt? To find out: 

Statute of Limitations on Debts

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).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

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.

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. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

17. Read this article: 

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

[jono]

I don't know if the request for BOP is a form online, Im not from cali, but I know others that posted here do know that answer.  Here are the questions to help us understand your case better.

 

For everyone that posts here, it will help us out if you can provide the following information: (revised 02-09-2012)

If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

1. Who is the named plaintiff in the suit? CREATIVE CREDIT SOLUTIONS

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) HOLLINS LAW

3. How much are you being sued for?4000

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

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

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

7. Was the service legal as required by your state? NO

Process Service Requirements by State - Summons Complaint

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? KERN CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 11/09/2008

11. What is the SOL on the debt? To find out: 4 YEARS

Statute of Limitations on Debts

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) LAWSUIT FILED

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) YES

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. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? BREACH OF CONTRACT MONEY HAD AND RECEIVED ACCOUNT STATED

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  NONE

17. Read this article: 

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

[Anon Amos]

Well based on what you good folks have told me I shall send off a bill of particulars . Can I get the form online and do I send a copy to the court?

 

There are a few courts that do have a BOP form online (check your courts website), but not many. And no you do not file it with the court. You can draft your own BOP on numbered legal pleading paper (google for free download). I will paste a sample (but it will not look right due to copy & paste) but you will get the idea.

 

 

 

1

DEMAND FOR BILL OF PARTICULARS

2

John Q. Smith

565 Fight Back Ave.

Anytown, CA 95668

415-654-1777

3 Defendant in Pro Per

4

5 IN THE SUPERIOR COURT STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SOMEWHERE

LIMITED CIVIL DIVISION

6

7

8

9

10 LOW DOWN COLLECTIONS, LLC

11 Plaintiff,

Case No.: 116509

DEMAND FOR BILL OF PARTICULARS

12 vs.

13 JOHN Q. SMITH

14 Defendant

15

16

17 To Plaintiff Low Down Collections, LLC, and their attorney of record herein:

18 DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil

19 Procedure §454 to furnish to defendant John Q. Smith, within ten (10) days a Bill of

20 Particulars setting forth all items and details of the account on which the cause of action

21 for money lent by plaintiff to defendant at defendant's request, of which plaintiff's

22 complaint is based. Including the date of each item or transaction, a description of the

23 services, materials or goods supplied or other considerations rendered; and the price or

24 charge made for each such item or transaction, and payments and credits that have

25 been made to the alleged account.

26 Dated: 5/12/2008

27

28

1

[jono]

Thank you for that , You know I am not sure on this but I thought I read somewhere that you had to send it a certain time before the court date is set .

 

Is this true or can I indeed send it anytime . Also  because its been 11 months since this was filed and as they know I replied Iwas waiting to see if they would persue this. Do you think if I sent it now I might rattle a few cages ?

[shellieh98]

so jono, it looks like since they filed in july of 2012, they are within the SOL if the last time you paid was 11/2008.  Ya they are stinkers sometimes, they file and do nothing so they can toll the SOL.  It's ok though becasue we are going to direct you on how to win it.  Just study hard and if you don't understand, post and we will try to clarify.  Start by sending the BOP like anon amos showed you.  Then while you are waiting for that, search around here for other people that have a list of requests for documents.  You are going to want to send those off soon.  Post them here and we will help you fit it to your case.

[Anon Amos]

Thank you for that , You know I am not sure on this but I thought I read somewhere that you had to send it a certain time before the court date is set .

 

Is this true or can I indeed send it anytime .

 

I don't think so. It's not something you file with the court anyway. Almost anything goes (until your opponent objects) and then it is what the judge allows.

Also  because its been 11 months since this was filed and as they know I replied Iwas waiting to see if they would persue this. Do you think if I sent it now I might rattle a few cages ?

It might. It might also send a good message. It is going to be a judgment call on your part, and it depends on what your strategy may be. After reading your thread again, and taking into account the amount of time since the filing: another option might just be to do nothing (and keep learning) and see what their next move is. You can be prepared to send the BOP or discovery at a later time. If it were my case I would be concerned about them filing for a summary judgment at some point, and if you were in discovery the chance of that would be far less.

 

I would either: 

 

1)    do nothing and wait

2)     send the BOP

3)    send discovery RFPD's.

 

Or possibly all 3 in that order.

[Seadragon]

Thank you for that , You know I am not sure on this but I thought I read somewhere that you had to send it a certain time before the court date is set .

 

Is this true or can I indeed send it anytime . Also  because its been 11 months since this was filed and as they know I replied Iwas waiting to see if they would persue this. Do you think if I sent it now I might rattle a few cages ?

send it now and work the BOP angle. It may be possible the plaintiff is gone and the case is lingering.

[Anon Amos]

 

Today is the 20 May and the court has no proof of service for this case

 

I was thinking you might have something here, but since you filed the answer; then technically you would of had to been served. It may not have been procedurally correct as far as the POS goes, but I'm not sure you can do anything with it at this point (which is a bit of a shame) but something else may come up later.

[jono]

I think I may wait and pick all of your brains for a while. Also this company the supposed creditor was deleted from my credit reports after I disputed it .

 

Transunion sent a letter account deleted failed to respond. I am now waiting to hear from OC wamu/chase . when I talked to them on the phone they said

they had little info and would investigate. I also sent a letter for validation as they are on the credit report but are not the ones trying to sue me .

 

I was thinking that if Chase could not validate and erased the account it would break the chain and nulify the lawsuit that claims chase as the OC.

What do your think I have my Perry Mason head on , I am getting carried away?

[shellieh98]

lol, wishful thinking.  Chase sold your account to someone, that's why they can't tell you anything.  The company suing you may have bought it from chase, or they  may have bought it from another company that bought it from chase.  Only discovery will tell.  But not to worry, each time it is sold, it is harder to prove standing.  They can say you owe them all they want, but unless they can prove standing, they will not win.  We are going to walk you though the process to get you to the end goal--a win!