JR42

Being sued by Razor Capital in California

Recommended Posts

Well I got a response to my BOP and it only contained information about them buying the debt from First National Bank of Omaha.  There is one exhibit, but 2 pages.  1 page is a bill of sale.  The other is a bill of sale and assignment.

 

I'm considering posting the response for all to see with some info redacted for privacy sakes.  Is that a good or bad idea? 

 

Regardless, this information is not what I asked for.  No statements were included.  It was just them claiming they bought the debt and give me only partial info on what credit card this was.  I do not have any information to dispute the information they give because I do not have the records for this former account.  I can't even verify the account number they gave me.  They claim the account was opened in 2003, which sounds about right (but I have no record of it).  They claim the last payment was September 2009.  They also claim the account was charged off by First National is 5/28/10.  The exhibits they produced (Bill of Sales) have dates from 2012 and 2013.

 

The response is insufficient.  Thus I do believe my next course of action is to resend my Bill of Particulars and give them only 5 days to respond.  Is that correct?

Link to post
Share on other sites

I'm trying to clear up a little confusion for myself.  Should I be drafting a "Meet & Confer" or should I be sending a 2nd BOP because their first response was insufficient? 

Link to post
Share on other sites

I'm trying to clear up a little confusion for myself.  Should I be drafting a "Meet & Confer" or should I be sending a 2nd BOP because their first response was insufficient?

You just need a simple meet and confer letter telling them to provide a proper response within 10 days, and if they don't; that you will motion the court to "preclude evidence or in it's alternative to compel a further response to the BOP".

But make sure you file the motion. Do not be seen as one who makes empty threats.

  • Like 1
Link to post
Share on other sites

Thanks for clearing that up for me Anon Amos.  So essentially the "Meet and Confer" letter includes a 2nd request for sufficient response and a notice of my intentions to file a motion to compel. I will start looking at sample "Meet & Confer" letters.

  • Like 1
Link to post
Share on other sites

Here is sample I used, that was given to me by calawyer hope it helps.

 

Dear ____

On ____, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof." As described below, plaintiffs’ response is entirely deficient.


Plaintiff has not provided an itemization of the account showing all charges and credits thereto. It has not provided the underlying contract referred to in the complaint. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit.

Please serve a full response on or before [insert date 10 days from date of letter]. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial.          

  • Like 1
Link to post
Share on other sites

Here is sample I used, that was given to me by calawyer hope it helps.

 

Dear ____

On ____, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof." As described below, plaintiffs’ response is entirely deficient.

Plaintiff has not provided an itemization of the account showing all charges and credits thereto. It has not provided the underlying contract referred to in the complaint. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit.

Please serve a full response on or before [insert date 10 days from date of letter]. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order precluding Plaintiff from offering any such evidence at trial.          

 

Thanks Bravoflaca2000.  Your sample letter appears to fit my needs exactly.  Do you mind if I use it?  Also, does all correspondance needs to filed with the court?  My assumption is yes, but perhaps not yet.

 

Thanks calawyer, I will check out the link you posted.

Link to post
Share on other sites

Just another quick question and this may help others as well when they get to the point of authoring their own "Meet and Confer" letter.  I assume with any and all letters I should be using the pleaded paper format, correct?

Link to post
Share on other sites

Not with a M&C. Just standard letter format for this.

 

So with the standard form letter, I assume that means that I do not submit this to the courts at this juncture.  I'm only sending this M&C letter to Plaintiff, correct?

Link to post
Share on other sites

Just another quick question and this may help others as well when they get to the point of authoring their own "Meet and Confer" letter.  I assume with any and all letters I should be using the pleaded paper format, correct?

 

 

No.  It is just a letter.  And you do not file it with the court.  You just send it to plaintiff's attorney.

 

If you have to file a motion to compel, you will attach it as an exhibit to your declaration.

  • Like 2
Link to post
Share on other sites

No.  It is just a letter.  And you do not file it with the court.  You just send it to plaintiff's attorney.

 

If you have to file a motion to compel, you will attach it as an exhibit to your declaration.

 

Thanks again.  And for anyone who is also following along on this thread for educational purposes and for continuity sakes, I have sent my "Meet an Confer" letter to the plaintiff's attorney only using a similar response to the one Anon Amos supplied in a prior post (which I believe was written by calawyer).  It basically states they did not comply with my BOP request and they have 10 days to respond before I am forced to file a motion with the court to exclude this from evidence at trial hearing.  At this point, I will just wait to see if they comply or not before my next step.

 

Thanks again to all of you that have assisted me thus far.

Link to post
Share on other sites

Just to get ahead, I'd start drafting that motion in limine - my guess is that they will not be able to come up with anything more than what they have...

 

Sorry if I sound uneducated on this term, but is that the same as a motion to compel?  Or is that simply a motion to exclude that particular evidence.  I took a few days off of this to get away from it, but I'm ready to be proactive.  I will start researching this immediately.  Thanks.

Link to post
Share on other sites

Motion in limine is quite different than the motion to compel. With the MTC your asking that the court force the other party to produce something for you. The MIL is your motion to the court that it not allow the JDBs "evidence" into the trial.

  • Like 1
Link to post
Share on other sites

I am prob wrong but I thought a MTC had to be used first and then if they don't cough anything else up they can be locked into using only what they have produced up to that point. The CCP 96 will also lock them in down the line but you're not there yet.

That's why I didn't press the issue with the MTC since they could have very well gone and got the needed evidence. One the CCP 96 hits them they're locked into that response.

Link to post
Share on other sites

Can anybody clear this up?  Should I be drafting a MTC (Motion to Compel) or a MTL (Motion to Limine).  The 10 days that I gave them with my Meet & Confer letter will be up on Monday, so I will likely file my motion near the end of the week.

Link to post
Share on other sites

Can anybody clear this up?  Should I be drafting a MTC (Motion to Compel) or a MTL (Motion to Limine).  The 10 days that I gave them with my Meet & Confer letter will be up on Monday, so I will likely file my motion near the end of the week.

Motion to compel. You will file the MIL's later to strike what they finally do produce from the MTC.

 

Make sure you read your local rules, and  get a motion date on calendar as well as give the plaintiff proper notice.

 

Good Luck.

  • Like 1
Link to post
Share on other sites

Motion to compel. You will file the MIL's later to strike what they finally do produce from the MTC.

 

Make sure you read your local rules, and  get a motion date on calendar as well as give the plaintiff proper notice.

 

Good Luck.

 

I'd personally go for a motion in limine - think of it this way... why get the court to order the plaintiff to produce the evidence????

 

In limine means the court tells the plaintiff that they cannot introduce any evidence.

 

Which would you go for?

  • Like 1
Link to post
Share on other sites

I'd personally go for a motion in limine - think of it this way... why get the court to order the plaintiff to produce the evidence????

 

In limine means the court tells the plaintiff that they cannot introduce any evidence.

 

Which would you go for?

My question is will a judge be willing to grant the MIL before a MTC was attempted? I agree with your tactics but just wonder what would be seen as appropriate by a judge.

  • Like 2
Link to post
Share on other sites

I'd personally go for a motion in limine - think of it this way... why get the court to order the plaintiff to produce the evidence????

 

 

 

I understand your point (and it can be a tough call for many). One reason I said MTC is that it keeps pressure on the plaintiff and forces them to spend time on the case. Another is like ASTMedic  talks about in his post. Judges often do not like precluding evidence (especially when the defendant has not tried every means of getting it) Another reason is that in my court the judge will not preclude evidence if a MTC has not been attempted. Another reason I said MTC is that JR42 sent them a M&C letter telling them that he would file a motion to preclude / compel in 10 days if they do not respond (so he should do what he said & not be viewed as making idle threats) Also, it is to soon to file  a MIL because the plaintiff is not trying to introduce anything into evidence right not to file a MIL against.

 

 

 

 

In limine means the court tells the plaintiff that they cannot introduce any evidence.

 

 

No it does not. In Limine means "at the threashold of trial". It is a motion at the beginning stage (threashold) of trial. An MIL is to strike a piece of evidence. IF you WIN the MIL; then the court will tell the plaintiff; THAT piece of evidence is inadmissible, not that they cannot introduce ANY evidence.

 

 

 

 

Which would you go for?

 

 

 

BOTH; & in the CORRECT order.....MTC; then about 5 days before trial the MIL's.

 

 

 

 

  • Like 1
Link to post
Share on other sites

I have researched other threads and it does seem that most here have gone with the MTC as the next step, but I do understand the reasoning by using the MTL immediately.  Once again I thank everyone on here for assisting me in the whole process.  I am going to go ahead and prepare the Motion to Compel.

 

When I file this with the court and send to plaintiff, I should attach a copy of my "M&C" letter, and the inadaquate response they sent me, correct?  I assume this serves as proof that I am trying to get what I am requesting and they are not complying.  I assume I should also attach a copy of the "Return receipt" of my M&C letter to show proof they have received it.

Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.