Served Recently

[scooter1]

I was served a Summons and Compliant.  I answered, listed Affirmative defs, and included the Cross-Complaint all in the same document.  The caption on the first page has them all listed as seperate items seperated by commas.  The proof of service from post office and the service of process shows them all seperately.  I also put the prayer at the end of the Cross.  I realize now the Cross is supppose to be a seperate document. 

 

The Plaintiff is now late in responding to the Cross-Complaint (sent on 4/26/13). 

 

1)  Can I file for entry of default with the clerk or will they reject it/or do I need to ammend it?

2)  If I can file it is it just the CIV-100 form I need to use?

3)  I haven't sent BOP yet, that is next I guess.

4)  Received their POD, RFA, and Special Integ (ROGS).

[scooter1]

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

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? $13K

 

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

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) Laid on doormat.

7. Was the service legal as required by your state?  No (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? Sacramento, CA

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

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

12. What is the status of your case? Suit served? Yes  Motions filed? No Summons "served", Answered, rcvd discovery

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? Yes verbally

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? NO 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.

[Anon Amos]

I was served a Summons and Compliant.  I answered, listed Affirmative defs, and included the Cross-Complaint all in the same document.  The caption on the first page has them all listed as seperate items seperated by commas.  The proof of service from post office and the service of process shows them all seperately.  I also put the prayer at the end of the Cross.  I realize now the Cross is supppose to be a seperate document. 

 

The Plaintiff is now late in responding to the Cross-Complaint (sent on 4/26/13). 

That may be why they are late because they know you made a mistake and it won't stick, but you never know.

 

1)  Can I file for entry of default with the clerk or will they reject it/or do I need to ammend it?

You probably could and see how it goes; or you could file the counterclaim again. Also in Cali call it a cross-complaint (my court said that CA does not recognize counterclaims only cross-complaints. Amending it is an option. It would be nice to see how Calawyer weighs in on this matter.

2)  If I can file it is it just the CIV-100 form I need to use?

I would think you could make that work

3)  I haven't sent BOP yet, that is next I guess.

That or start your own discovery RFPOD's

4)  Received their POD, RFA, and Special Integ (ROGS).

Make sure you answer timely. Deny everything, produce nothing, object to personal information on the grounds that it violates your privacy and cannot be expected to lead to discoverable evidence.

Nice job adding the cross complaint (although it may be a bit rough, and possibly need damage control) that is going to be  a nice piece of leverage if you can get it to stick (or even better, ruled default) When fighting a bottom feeder like CACH these kinds of things are very helpful. CACH fights pretty hard. 

[scooter1]

Anon...Thanks for the response.  Yeah the Cross may not stick as you mentioned.  My thinking is that since the Proof of Service, the captions on pg.1 of my Answer, cmrrr all state it "Cross-Complaint" on them seperately even though it was part on the answer and not seperate that it may possibly fly.  Also CCP 428.40 states that:  The cross-complaint shall be a separate document.   It says "shall" not must.

 

 

1)  Can I file for entry of default with the clerk or will they reject it/or do I need to ammend it?

You probably could and see how it goes; or you could file the counterclaim again. Also in Cali call it a cross-complaint (my court said that CA does not recognize counterclaims only cross-complaints. Amending it is an option. It would be nice to see how Calawyer weighs in on this matter.

 

Yeah CCP 428.80 seems to take care of calling it a counterclaim wish my problem was that easy.  I wish I found these forums earlier.  I look forward to him Calawyer or anyone else chiming in.  Ammending it is indeed an option if it doesn't fly.

 

2)  If I can file it is it just the CIV-100 form I need to use?

I would think you could make that work

 

3)  I haven't sent BOP yet, that is next I guess.

That or start your own discovery RFPOD's

 

4)  Received their POD, RFA, and Special Integ (ROGS).

Make sure you answer timely. Deny everything, produce nothing, object to personal information on the grounds that it violates your privacy and cannot be expected to lead to discoverable evidence.  That was my plan except for things like address and marriage info as it seems like it would be hard to not say I don'y know where I lived or whom I was married to and when but I guess that could be considered personal and not leading to anything as you mentioned.

 

New:  5)  In my Cross/answer I guess I will call it,  I asked for more than $25K.  When I do the Entry of default and Clerk judgement of default what amount do I put in for amount prayed for?  It is a limited civil under 25k case as it was filed by Plaintiff.   My logic is since it is a seperate case I could ask for the amount prayed for, but since it is in a court of "civil limited" am I limited on what I can ask for?

 

 

 
 


 

[Anon Amos]

  The cross-complaint shall be a separate document.   It says "shall" not must.

LOL, it works for me! I like your thinking here. As usual it all depends on the judge.

 

 

1)  Can I file for entry of default with the clerk or will they reject it/or do I need to ammend it?

You probably could and see how it goes; or you could file the counterclaim again. Also in Cali call it a cross-complaint (my court said that CA does not recognize counterclaims only cross-complaints. Amending it is an option. It would be nice to see how Calawyer weighs in on this matter.

 

Yeah CCP 428.80 seems to take care of calling it a counterclaim wish my problem was that easy.  I wish I found these forums earlier.  I look forward to him Calawyer or anyone else chiming in.  Ammending it is indeed an option if it doesn't fly.

I would feel more comfortable with Calawyers response, but if it were mine I think I would file for the entry of default ASAP. It will give them something to object and force them to work on the case if nothing else.

 

4)  Received their POD, RFA, and Special Integ (ROGS).

Make sure you answer timely. Deny everything, produce nothing, object to personal information on the grounds that it violates your privacy and cannot be expected to lead to discoverable evidence.  That was my plan except for things like address and marriage info as it seems like it would be hard to not say I don'y know where I lived or whom I was married to and when but I guess that could be considered personal and not leading to anything as you mentioned.

 

I did not read all the discovery they sent you, I say that as a blanket answer (which I may have to revise as I do catch a little flack for it) I know people will know better than to deny knowing who they were married to. You could object to it on the grounds you mentioned. I usually suggest people answer as much as they can. You don't have to object to something in discovery just because you can. if it doesn't bother you, and it doesn't damage you, you are better off answering (for one; it gives them nothing to compel)

New:  5)  In my Cross/answer I guess I will call it,  I asked for more than $25K.  When I do the Entry of default and Clerk judgement of default what amount do I put in for amount prayed for?  It is a limited civil under 25k case as it was filed by Plaintiff.   My logic is since it is a seperate case I could ask for the amount prayed for, but since it is in a court of "civil limited" am I limited on what I can ask for?

It's your cross complaint. I would think that your prayer would have to be under 25k. Although you can ask for whatever you want, it doesn't mean you will get it. Technically you can only be compensated for an amount you can prove you were damaged for, as in this case you cannot sue for punitive damages. I saw your cross complaint mainly as a significant piece of leverage to get them to dismiss their case.

[scooter1]

The cross-complaint shall be a separate document.   It says "shall" not must.

LOL, it works for me! I like your thinking here. As usual it all depends on the judge.

Thanks, so do I, LOL.  Yeah, true.

 

1)  Can I file for entry of default with the clerk or will they reject it/or do I need to ammend it?

You probably could and see how it goes; or you could file the counterclaim again. Also in Cali call it a cross-complaint (my court said that CA does not recognize counterclaims only cross-complaints. Amending it is an option. It would be nice to see how Calawyer weighs in on this matter.

Ok I'll wait.  If I ammend then the 30 day clock starts again for them to respond.

 

Yeah CCP 428.80 seems to take care of calling it a counterclaim wish my problem was that easy.  I wish I found these forums earlier.  I look forward to him Calawyer or anyone else chiming in.  Ammending it is indeed an option if it doesn't fly.

I would feel more comfortable with Calawyers response, but if it were mine I think I would file for the entry of default ASAP. It will give them something to object and force them to work on the case if nothing else. 

Yeah

 

4)  Received their POD, RFA, and Special Integ (ROGS).

Make sure you answer timely. Deny everything, produce nothing, object to personal information on the grounds that it violates your privacy and cannot be expected to lead to discoverable evidence.  That was my plan except for things like address and marriage info as it seems like it would be hard to not say I don'y know where I lived or whom I was married to and when but I guess that could be considered personal and not leading to anything as you mentioned.

 

I did not read all the discovery they sent you, I say that as a blanket answer (which I may have to revise as I do catch a little flack for it) I know people will know better than to deny knowing who they were married to. You could object to it on the grounds you mentioned. I usually suggest people answer as much as they can. You don't have to object to something in discovery just because you can. if it doesn't bother you, and it doesn't damage you, you are better off answering (for one; it gives them nothing to compel)

Good idea, thanks

  

 5)  In my Cross/answer I guess I will call it,  I asked for more than $25K.  When I do the Entry of default and Clerk judgement of default what amount do I put in for amount prayed for?  It is a limited civil under 25k case as it was filed by Plaintiff.   My logic is since it is a seperate case I could ask for the amount prayed for, but since it is in a court of "civil limited" am I limited on what I can ask for?

 

It's your cross complaint. I would think that your prayer would have to be under 25k. Although you can ask for whatever you want, it doesn't mean you will get it. Technically you can only be compensated for an amount you can prove you were damaged for, as in this case you cannot sue for punitive damages. I saw your cross complaint mainly as a significant piece of leverage to get them to dismiss their case.

 

I will make it for 25k then as it is FDCPRA violations but it will be he said/she said not sure how to prove it yet.  Is there a format for a cause of action for them ( I just listed them by action initially)or how do I plead them in the complaint?  Is there an example on here that you know of?
 

[Anon Amos]

 

I will make it for 25k then as it is FDCPRA violations but it will be he said/she said not sure how to prove it yet.  Is there a format for a cause of action for them ( I just listed them by action initially)or how do I plead them in the complaint?  Is there an example on here that you know of?

 

If you are saying it is an FDCPA violation you sued for then the cap on that is $1000. In your complaint you just state what area of the FDCPA they violated. At a trial it would be a he said she said event. I don't know what you are suing them for so it's hard for me to say. You probably won't find many examples (but I'm sure some are out there) because a cross complaint is kind of rare, although it is gaining popularity (and for good reason)

[scooter1]

Yes, FDCPA and maybe Rosental also haven't had a chance to really look at it yet.  I though I saw a post and some guy said he got over $100k on his case so I am wondering is it for each violation is $1000?  I got some work to do.   I am looking for some examples of the cross-complaint related to FDCPA.

[Anon Amos]

Yes, FDCPA and maybe Rosental also haven't had a chance to really look at it yet.  I though I saw a post and some guy said he got over $100k on his case so I am wondering is it for each violation is $1000?  I got some work to do.   I am looking for some examples of the cross-complaint related to FDCPA.

I think sometimes people get  a little far fetched with their victories. In some states you can get 1k per  each FDCPA violation, but in CA it caps at 1k no matter how many you have. That's how I understand it anyway. When it's not an FDCPA you are suing under; then you have to show how you were damaged. If you are suing for 20k you need to show how you lost 20k because of their actions.

[scooter1]

Posted Today, 08:27 AM

scooter1, on 15 Jun 2013 - 12:05 AM, said:

Yes, FDCPA and maybe Rosental also haven't had a chance to really look at it yet.  I though I saw a post and some guy said he got over $100k on his case so I am wondering is it for each violation is $1000?  I got some work to do.   I am looking for some examples of the cross-complaint related to FDCPA.

I think sometimes people get  a little far fetched with their victories. In some states you can get 1k per  each FDCPA violation, but in CA it caps at 1k no matter how many you have. That's how I understand it anyway. When it's not an FDCPA you are suing under; then you have to show how you were damaged. If you are suing for 20k you need to show how you lost 20k because of their actions.

 

OK, darn!  Thanks for the update.  1K...That doesn't give me much leverage. 

[Anon Amos]

 

 

OK, darn!  Thanks for the update.  1K...That doesn't give me much leverage. 

 

Sure it does. That added to the fact that you will not settle, you will fight the case actively, you are going to cost them time and money in litigation, is plenty of leverage. Also, whatever amount you asked for in your cross complaint; I would just stick with it, you are supposed to stick to your pleadings (or amend them) anyway. Let them object to the amount. The bottom feeder would not pay the money anyway, although they probably would pay the FDCPA fine. 

 

As far as leverage; they are not going to look at that as 1k. It is now going  to be 2 lawsuits (1 they would still have to collect on if they did win), time in court, work that will HAVE to be done by the lawyer, OR; they could offer a settlement where both sides dismiss and they move on to an easier target, one that will pay.

[scooter1]

Looked up Rosenthal Act and 1788.32 says:  "The remedies provided herein are intended to be cumulative and are in addition to any other procedures, rights, or remedies under any other provision of law. The enactment of this title shall not supersede existing administrative regulations of the Director of Consumer Affairs except to the extent that those regulations are inconsistent with the provisions of this title".....My take on this is that it could add up to more than $1K

[scooter1]

You are right.  I wasn't thinking of it in that way (being 2 lawsuits) since filed together.  The amount I filed for is way out of the courts jurisdiction so was not sure on what amount to put in default, on the other hand I did ask for it and they did default.  Still unsure as to what to put at this point for amount.  Also not sure since technically a larger amount would put in under the jurisdiction of a higher court (from limited civil to unlimited civil) possibly I am thinking and am not sure of different requirements of that court.

[Anon Amos]

You are right.  I wasn't thinking of it in that way (being 2 lawsuits) since filed together.  The amount I filed for is way out of the courts jurisdiction so was not sure on what amount to put in default, on the other hand I did ask for it and they did default.  Still unsure as to what to put at this point for amount.  Also not sure since technically a larger amount would put in under the jurisdiction of a higher court (from limited civil to unlimited civil) possibly I am thinking and am not sure of different requirements of that court.

I guess technicaly it is one lawsuit, but it is going to be twice as hard (or close to it) I doubt the amount you are asking for is a major issue as long as you don't ask for less than you have a chance of wining, because the judge will decide how much would be fair.

You could ask for" X amount or other amount deemed fair and reasonable by this honorable court" or something to that effect. I would ask for 12k or so, something reasonable, and realistic. If the judge felt you should get more (unlikely) he/she could always grant the additional amount. I wouldn't plan any shopping sprees yet.

 

Check your local rules for requirements of the court.

[scooter1]

OK.  Looking at  the form you give to the clerk for request for entry of Default/Default Judgement ( CIV-100 ) (http://www.courts.ca.gov/documents/civ100.pdf     it just wants to know a dollar amount from what I recall.

[Anon Amos]

OK.  Looking at  the form you give to the clerk for request for entry of Default/Default Judgement ( CIV-100 ) (http://www.courts.ca.gov/documents/civ100.pdf     it just wants to know a dollar amount from what I recall.

Then it would be the amount you asked for in the prayer of the cross complaint. Didn't you already state  an amount?

If the amount is too high the judge just would not allow it. You see people lose cases but the judge does not award the full amount, sometimes they say the interest was not fair. If it were mine; I would place a higher importance on getting it filed rather than the actual dollar amount. 

[scooter1]

I stated an amount in the prayer that is way over the limited civil amount.  Don't want the judge to possibly be prejudiced from it.  On the other hand I would imagine they would fight it either way.

[Anon Amos]

I stated an amount in the prayer that is way over the limited civil amount. 

Yeah, I figured that's what you did

Don't want the judge to possibly be prejudiced from it. 

I think by lowering the amount you are OK. If you started with a lower amount and then raised it; That may prejudice a judge.

On the other hand I would imagine they would fight it either way.

The judge would just decide what the correct amount should be.

[skippy1960]

Scooter,

You have alot going on here early on in the case. To understand for sure where your "Cross-Complaint" stands you should be able to tell by how much the Clerk charged you in fee's to file the answer/cross. In my jursidiction of California I would have been charged to file the answer and then if the clerk recognized the Cross-Complaint filing another fee. This would be because the Cross Complaint is another action.

If you only paid to answer the complaint, then the court is only recognizing your answer. This along with the CCP 428 that you already know about leads me to believe you will not be getting any answer from the Plaintiff on your cross. Further the clerk will not be taking any default judgement paperwork from you.

No harm no foul, but I would stay on point and deal with the case against you. Being new as all of us are when we arrive here, better to be sure that I don't lose first, before adding additional learnings neccessary to be a plaintiff and prosecute a case against another.

You are being sued by a JDB, in reading here you should be seeing many are having great sucess defening and winning. While a cross complaint can create additional leverage, but circumstances and skill sets should dictate when to use that method or strategy along with a good defense.

If I were in your shoes I would work the defense angle only even if I was capable of executing a cross complaint strategy. Here is why?

I am being sued for 13K, which for me, if I lost would force BK, based on my income. A $1k-$2K cross isn't enough monetary value to have the otherside blink. They could look at it as I paid #130 bucks for this $13K debt, I win judgement and I am up $12K less some court costs. Even if they didn't fight the cross and gave away the $2K, they are still up $10K.

Long story short focus on defending, if you have any true violations of the FDCPA or Rosenthal they are good for 1 year, so you could file a legitimate cross complaint in 5 months, if you really think it is neccessay.....

[scooter1]

Skippy,  thanks for your input.  That was weird.  I saw you had responded but it took a few hours till it appeared..... I have seen the wins and it is encouraging.  It is listed on the courts website as just an answer so yes you are right and no seperate charge for the cross.  That is why in my earlier post I was wondering if the clerk would even accept it.  Good advice, yes I need to work on the defensive side as a priority.  I am learning day by day.

 

I am in somewhat similiar facts as yours then dollarwise.  Good luck with you case.  My BOP is going out Monday, I was thinking about faxing it or should I cmrrr it?  Is the fax confirmation just as good?  I suspect they will just object and do the Destefano from what I have seen on here.  Here is the BOP:

 

 

1.  Itemized statements or credit card statements from Account ending in XXXX that demonstrates how the alleged amount of $XXXXX.XX was calculated.    

 

2.  Any and all further documents that the Plaintiff believes establishes that the Defendant had an outstanding account of debt related to Account Number ending in XXXX.

 

3.  Proof of the date of Last Activity as evidenced by date of the last payment made on alleged account number ending in XXXX.

 

4.  Provide a copy of any agreement assigning the alleged account at issue to the Plaintiff, and any contract between defendant and plaintiff relating to the account in question.

[Anon Amos]

Defense is priority, but if you have a valid cross complaint I would amend and file it.  The best defense is a good offense. Maybe keep the FDCPA part (assuming it's valid) and drop the rest. That will keep it much easier and give you a lot of leverage. It will also send a good message to the bottom feeder. You are persistent, learning quickly, and don't give up, and correct your mistakes. They need to get the feeling you are not worth pursuing.

[scooter1]

Anon, it looks like you were right on the FDCPA limit of a one time $100 to $1000. But the Rosenthal one said cumulative so maybe that would be the way to go on that. When I get time I will look into that.

I am working on the RFA's they sent me. Here is what they sent me for those that are interested:

1. Admit OC issued to YOU the ACCOUNT (for purposes of these requests for Admissions, "OC" means X bank, "YOU" and "YOUR" mean (me), your agents, attorneys, representatives or anyone acting on you behalf, and ACCOUNT" means the X Bank account number xxxxxxxxxxxx which is the subject of this suit.

2. " that YOU used said ACCOUNT (e.g., for purchases and/or cash advances).

3. " " " and the OC entered into an agreement regarding the ACCOUNT.

4. " " " agreed to pay OC and its successors and assigned all outstanding balances owed on the ACCOUNT.

5. Admit that the OC mailed monthly statements to YOU regarding YOUR ACCOUNT.

6.  " " you received a final statement on or around xx/xx/2012 from OC with an outstanding balance of $XXXXX.XX

7.  " " YOU never disputed, with any person on entity including the OC, the statement with an outstanding balance of $XXXXX.XX

8.  " " YOU have not paid the outstanding balance on said ACCOUNT.

9.  " " YOU owe the Plantiff the amounts prayed for in the Complaint.

10. " " YOU have no facts which would vary the amounts owed to the Plaintiff.

11. " " YOU have no affirmative defenses against the Plaintiff's Complaint.

[Anon Amos]

Anon, it looks like you were right on the FDCPA limit of a one time $100 to $1000. But the Rosenthal one said cumulative so maybe that would be the way to go on that. When I get time I will look into that.I

I haven't heard of anything about $100, only the 1k. I forgot most of what little I did know about the Rosenthal Act, but I seem to remember thinking it would be very hard to do anything with it in a cc case, but I don't know.

I am working on the RFA's they sent me. Here is what they sent me for those that are interested:

Make sure you get them in on time, and if you have not sent them a BOP or discovery; I would do so.

1. Admit OC issued to YOU the ACCOUNT (for purposes of these requests for Admissions, "OC" means X bank, "YOU" and "YOUR" mean (me), your agents, attorneys, representatives or anyone acting on you behalf, and ACCOUNT" means the X Bank account number xxxxxxxxxxxx which is the subject of this suit.

DENY

2. " that YOU used said ACCOUNT (e.g., for purchases and/or cash advances).

DENY

3. " " " and the OC entered into an agreement regarding the ACCOUNT.

DENY

4. " " " agreed to pay OC and its successors and assigned all outstanding balances owed on the ACCOUNT.

DENY

5. Admit that the OC mailed monthly statements to YOU regarding YOUR ACCOUNT.DENY

6.  " " you received a final statement on or around xx/xx/2012 from OC with an outstanding balance of $XXXXX.XX

deny

7.  " " YOU never disputed, with any person on entity including the OC, the statement with an outstanding balance of $XXXXX.XX

admit

8.  " " YOU have not paid the outstanding balance on said ACCOUNT

ADMIT

9.  " " YOU owe the Plantiff the amounts prayed for in the Complaint.

DENY

10. " " YOU have no facts which would vary the amounts owed to the Plaintiff.

OBJECTION: Calls for legal conclusion

11. " " YOU have no affirmative defenses against the Plaintiff's Complaint.

I don't know enough about your case to answer.

 

 

 

You could also say:  DENY: Defendant is without sufficient knowledge or information to form a belief about the allegation and therefore denies.

[scooter1]

Thanks for your input on these RFA's.  This stuff is starting to sink in somewhat.  A couple of questions in regards to #'s:

 

10.  This looks like a trick question to me.   If I admit or deny it then I am saying I owe them.  Can I respond with that "objection"?    Looking at CCP 2033.220 It seems that I can only respond with admit, deny or some hybrid (admit part deny other part).  Also if you use the lack of information....thing you must state that you made a reasonable
inquiry.  Based on that then should I answer differently?

 

11.  The answer you put there is that what you suggest I put in my RFA or that you just didn't know enough of my case?  I did put some standard affirmative defences in my Answer to their Complaint.  So my idea is to DENY it.

 

I'm not trying to get picky here but I read somewhere that you can be sanctioned for not responding properly.

[shellieh98]

You can say objection, state the reason for objection, then say without forgoing objection, defendant denies