JR42

Being sued by Razor Capital in California

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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.

 

 

Yes.  You will do a short declaration saying you sent the BOP, received no response, sent a meet and confer letter and again received no response.  You will attach as exhibits your BOP and your letter.  There are exemplars here on the site you can find if you do a search.

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Yes.  You will do a short declaration saying you sent the BOP, received no response, sent a meet and confer letter and again received no response.  You will attach as exhibits your BOP and your letter.  There are exemplars here on the site you can find if you do a search.

 

Just to clarify, they did respond to my BOP, but it was not what I asked for.  They have not responded to my M&C.  I gave them until last Monday (Aug. 5).  I also took the advice of others and have given them an additional 5 days before I take my next action.  The additional 5 days will be up tomorrow and I will be filing my motion to compel on Monday.

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Anybody have any good links for writing my MTC?  I'm looking around myself, but it doesn't hurt to ask if it can save me time.  I have read ASTMedic's which is similar to my case.  I'd just like to look at a few more to get a better understanding of how to write.

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but I do understand the reasoning by using the MTL immediately.

I assume you meant MIL & not  MTL. If you meant MIL: you can't always file these immediately. The plaintiff has not tried to introduce anything into evidence YET, so at the time there is nothing to strike (and the court will say it is premature). You are still in the discovery stage. You need  a TRIAL date before you can know when the best time to file the MIL's will be (probably about 5 days before trial).

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Anybody have any good links for writing my MTC?  I'm looking around myself, but it doesn't hurt to ask if it can save me time.  I have read ASTMedic's which is similar to my case.  I'd just like to look at a few more to get a better understanding of how to write.

If you found ASTMedic's thread on beating Midland (and it has a MTC) you probably have what you need. However, I believe there is a good M&C letter floating around here from CAlawyer that actually reads like a MTC (if people use this as a M&C; then they will basically have everything they need to turn it into a MTC). Good luck.

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Just to clarify, they did respond to my BOP, but it was not what I asked for.  They have not responded to my M&C.  I gave them until last Monday (Aug. 5).  I also took the advice of others and have given them an additional 5 days before I take my next action.  The additional 5 days will be up tomorrow and I will be filing my motion to compel on Monday.

 

As I understand it, they have not given you any statements at all.  CCP 454 requires plaintiff to furnish "the account".  THat, in my view means all statements from inception to alleged default.  So I would say they have not complied with the statute at all.

 

Anybody have any good links for writing my MTC?  I'm looking around myself, but it doesn't hurt to ask if it can save me time.  I have read ASTMedic's which is similar to my case.  I'd just like to look at a few more to get a better understanding of how to write.

 

There is one in this thread:  http://www.creditinfocenter.com/forums/there-lawyer-house/310833-anyone-california-know-what-pos-use-when-serving-answer-complaint.html#post1135453

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If you found ASTMedic's thread on beating Midland (and it has a MTC) you probably have what you need. However, I believe there is a good M&C letter floating around here from CAlawyer that actually reads like a MTC (if people use this as a M&C; then they will basically have everything they need to turn it into a MTC). Good luck.

 

I've got that M&C in my thread. It was set up the way Calawyer recommends so that it was a cut and paste into the MTC. It's basically a match set

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I'm writing my MTC and my first question be how is it we determine the date that you submit on your motion....

 

Excerpt....

 

"PLEASE TAKE NOTICE that on May 15th, at 8:30 a.m. or as soon thereafter as the matter may be heard, in the Superior Court of the County of {YOUR COURT}, Defendant {YOUR NAME HERE}, will and hereby does move this Court for an order compelling Plaintiff Midland Funding to further produce responses to Defendants Request for Production, Set 1"

 

Is this simply the date you file the motion in court?

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"PLEASE TAKE NOTICE that on May 15th, at 8:30 a.m. or as soon thereafter as the matter may be heard, in the Superior Court of the County of {YOUR COURT}, Defendant {YOUR NAME HERE}, will and hereby does move this Court for an order compelling Plaintiff Midland Funding to further produce responses to Defendants Request for Production, Set 1"

 

Is this simply the date you file the motion in court?

 

Or am I requesting a specific date?  I'm not sure I understand this.

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Or am I requesting a specific date?  I'm not sure I understand this.

 

Also in the opening paragraph of MTC, the example reads...

 

"to further produce responses to Defendants Request for Production, Set 1."

 

If I understand this correctly, this is simply different phrase for responses to "Defendants request for Bill of Particulars."  Am I correct in this assumption?  It also uses a reference to "set 1" which I am guessing refers to it being the first request of information.  Is that correct as well?  Or should I be using this exact phrase the way it was written?

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Also in the opening paragraph of MTC, the example reads...

 

"to further produce responses to Defendants Request for Production, Set 1."

 

If I understand this correctly, this is simply different phrase for responses to "Defendants request for Bill of Particulars."  Am I correct in this assumption?  It also uses a reference to "set 1" which I am guessing refers to it being the first request of information.  Is that correct as well?  Or should I be using this exact phrase the way it was written?

No. That language is referring to a further response to (discovery) request for production of documents. Set No. 1 (as in the first set (people often send discovery in sets; set 1, set 2, etc.).

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I'm writing my MTC and my first question be how is it we determine the date that you submit on your motion....

 

Excerpt....

 

"PLEASE TAKE NOTICE that on May 15th, at 8:30 a.m. or as soon thereafter as the matter may be heard, in the Superior Court of the County of {YOUR COURT}, Defendant {YOUR NAME HERE}, will and hereby does move this Court for an order compelling Plaintiff Midland Funding to further produce responses to Defendants Request for Production, Set 1"

 

Is this simply the date you file the motion in court?

1) You need a copy of your local rules. 2) You need to find out if your court uses the "tentative ruling system" 3) you need to find out on what day of the week your court has motion hearings.

Then you need to pick a hearing date that is at least 21 days (16 days notice to plaintiff + 5 days for mailing) from the date you file and serve a copy of your motion to your opponent (unless your rules specify differently).

It's not the date you file; it's the date (you pick(that is on a motion hearing day for your court) that allows proper notice to the plaintiff (as this is a "noticed" motion you are filing).

Hope that helps...

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Or am I requesting a specific date?  I'm not sure I understand this.

You are requesting a specific date that is on a day that is a motion hearing day for your court and gives the plaintiff at least 21 days notice (16 days for notice + 5 days for mailing). But you need to read this for sure in your local rules. My rules say to add 5 more days if the lawyer is in a different county.

You might look on your court website under "tentative rulings" and see if you find anything. And also find your local rules (if you don't already have them).

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Thanks for the responses.  As usual it takes me a little bit of time to understand this process and I'm obviously trying to make sure I'm doing this correctly.  I'm currently re-writing my MTC to reflect my better understanding. 

 

I did receive a response from their lawyer today, essentially asking for more time and stating case precedents.  I will post a copy of their letter here.  From what I can tell they are not objecting to my request yet and claim they need more time to obtain the information I requested in my BOP and M&C.  From what I understand this is quite normal as they are basically admitting they don't have it and want me to think they will proceed without this evidence even if they are unable to provide it.  In other words, it's a subtle intimidation tactic.  Am I correct in this line of thinking? 

 

So my questions would be, how much time am I supposed to give them in good faith at this point?  I've read on a few threads that 5 days is normal.  Interesting part is this letter is dated August 12th (6 days ago) so I'm wondering if the 5 days has already expired and I should go ahead and file my motion this week.  Or perhaps I should wait and see if they come up with anything?  I'm curious what others have done in this situation. 

 

Letter attached with personal info redacted...

 

 

post-121129-0-86109900-1377016291_thumb.

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I think I would consider moving on to discovery. You could send them a short request for production of documents. I would send them a letter with the RFP's stating that in light of their recent attempts to provide you with the evidence they plan to use; as well as their request for more time, in efforts to litigate in good faith; you have decided to give them 30 days to respond (pursuant to the discovery statutes) and to simplify it even more; you have included a list of what you expect (RFPOD's).

More than likely you would lose the MTC BOP; and be told to get the evidence thru discovery anyway (in my opinion).

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I think I would consider moving on to discovery. You could send them a short request for production of documents. I would send them a letter with the RFP's stating that in light of their recent attempts to provide you with the evidence they plan to use; as well as their request for more time, in efforts to litigate in good faith; you have decided to give them 30 days to respond (pursuant to the discovery statutes) and to simplify it even more; you have included a list of what you expect (RFPOD's).More than likely you would lose the MTC BOP; and be told to get the evidence thru discovery anyway (in my opinion).

Agreed

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I understand that I would likely lose this motion.  But I was under the impression that I needed to file this motion so that they know I mean business and that I intend to follow through on my threats to continue this argument in court.  Because I am not currently working, I was able to get my fees waived.  However, I have followed the advice on this board to this juncture and have not been steered wrong thus far, so if the consensus is that I should not file the MTC, I will take this advice and move on to the next phase.

 

In writing this letter to give the Plaintiff an additional 30 days in good faith Anon Amos wrote...

 

"I think I would consider moving on to discovery. You could send them a short request for production of documents. I would send them a letter with the RFP's stating that in light of their recent attempts to provide you with the evidence they plan to use; as well as their request for more time, in efforts to litigate in good faith; you have decided to give them 30 days to respond (pursuant to the discovery statutes) and to simplify it even more; you have included a list of what you expect (RFPOD's).More than likely you would lose the MTC BOP; and be told to get the evidence thru discovery anyway (in my opinion)."

 

I must have missed this so far because I'm not sure what the abbreviation RFPOD's stands for and looking it up has not yielded any answers thus far.  I'm also curious about when I start the clock on the 30 extra days that I am giving them.  Is it from the date of the letter I am writing?  Or is it 30 days from their request for additional time letter (which was dated Aug. 12th).  My last question would be about what specific types of documents I should be requesting.  Why is this any different from my BOP? 

 

Here is what I requested on my BOP...

 

"...to furnish to defendant [My name], within ten days hereafter, a bill of

 

particulars setting forth the items and details of the account on which the cause of action for goods

 

sold and delivered of plaintiff's complaint is based, including  the date of each item or transaction; a 

 

description of the services, materials or goods supplied or other considerations rendered; and

 

the price or charge made for each such item or transaction. "

 

 

I'm very confused at this point

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I understand that I would likely lose this motion.  But I was under the impression that I needed to file this motion so that they know I mean business and that I intend to follow through on my threats to continue this argument in court.  Because I am not currently working, I was able to get my fees waived.  However, I have followed the advice on this board to this juncture and have not been steered wrong thus far, so if the consensus is that I should not file the MTC, I will take this advice and move on to the next phase.

**** That's a good point. You do not want to give the impression you make idle threats. In this case however; you are still keeping pressure on them and forcing them to spend time on the case. I don't think they will see it as a weakness. I have seen Calwyer say to file the MTC BOP in a few threads however (saying it is easier). There usually is more than just one thing you can do, and it takes judgment calls.

File the MTC BOP or move on to discovery. Or do BOTH, starting with the MTC BOP then the discovery (that's what I did). I would not file the MTC BOP only however; regardless of the result I would send them discovery as well. The main thing is that you keep pressure on them (in my opinion).

Use the fact that you are not working (and have time to learn and fight) as well as the fee waiver against them. For now; defeating them IS your job, and if done right; you will be well paid.***

 

In writing this letter to give the Plaintiff an additional 30 days in good faith Anon Amos wrote...

 

"I think I would consider moving on to discovery. You could send them a short request for production of documents. I would send them a letter with the RFP's stating that in light of their recent attempts to provide you with the evidence they plan to use; as well as their request for more time, in efforts to litigate in good faith; you have decided to give them 30 days to respond (pursuant to the discovery statutes) and to simplify it even more; you have included a list of what you expect (RFPOD's).More than likely you would lose the MTC BOP; and be told to get the evidence thru discovery anyway (in my opinion)."

 

I must have missed this so far because I'm not sure what the abbreviation RFPOD's stands for and looking it up has not yielded any answers thus far.  I'm also curious about when I start the clock on the 30 extra days that I am giving them.  Is it from the date of the letter I am writing?  Or is it 30 days from their request for additional time letter (which was dated Aug. 12th).  My last question would be about what specific types of documents I should be requesting.  Why is this any different from my BOP? 

 

***RFPOD's... Request for production of documents. Something like:

1) Pease provide a credit application from defendant pertaining to the alleged account.

2) Please provide all credit card statements showing all charges and payments from a zero balance to the amount charged off.

3) Please provide all documents proving assignment of alleged debt from OC to bottom feeder.

4) Please provide any and all documents bearing defendants signature.

(I believe Calwayer has basically the same thing on here somewhere that are worded better, but you get the idea here (with the emphasis being on keeping it simple)***

Here is what I requested on my BOP...

 

"...to furnish to defendant [My name], within ten days hereafter, a bill of

 

particulars setting forth the items and details of the account on which the cause of action for goods

 

sold and delivered of plaintiff's complaint is based, including  the date of each item or transaction; a 

 

description of the services, materials or goods supplied or other considerations rendered; and

 

the price or charge made for each such item or transaction. "

*** That may be a little more than they are required to produce (price and charge for each item) but it does not matter; they know what a BOP is, and what the statute requires.***

 

 

I'm very confused at this point

***I would not say very confused; you just have a few things to iron out and a judgment call to make. I have talked to people who "are very confused" and they don't have a clue; but we get them thru it anyway (especially with the Calli post; because they do not get attacked constantly by the few with opposing opinions).

You can do it, there is plenty of help here... Good Luck.***

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Here's my thoughts on this:

This isn't about showing you're a force to be reckoned with. As a pro per I'm playing for blood and nothing short of a win that they can't recover from. Is it really tactically sound to let your opponent know you got them in your sights? I look at this as battle. They made the first attack (summons) and you returned fire stopping them (answered and BOP). Now does it make sense to send out some small skirmishes (RFPOD) to test their lines or send a strong assault at one location in their line (MTC)? You could very well win the MTC but many times it just doesn't pan out. So why not hit them with the small stuff and see what evidence they give you. I'm willing to bet that you've already been given the docs and that is all they have. This is a fight to win not a fight to scare them off. If they were to dismiss because you pressed too hard early on then they can just bring a suit again later. I'd rather wait and let them think I'm weak and an easy target till they have no choice but to dismiss with prejudice. Sure if you're way behind the 8 ball getting them to dismiss till you're ready for the fight is necessary. If you are having a hard time fighting your case then making them dismiss is good too. (You don't seem like that is an issue) Coming to a settlement where they can't sue again is fine too.

I know I may seem a bit over the top to some but this is my money, money that will feed my family, that I'm fighting for. I will fight the same way I would any other threat to my family. I will be as nasty in my fight as I'm allowed to be and fight till the threat can't get back up.

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(You don't seem like that is an issue) Coming to a settlement where they can't sue again is fine too.

I know I may seem a bit over the top to some but this is my money, money that will feed my family, that I'm fighting for. I will fight the same way I would any other threat to my family. I will be as nasty in my fight as I'm allowed to be and fight till the threat can't get back up.

Don't these two points contradict themselves (settle and fight)? I did the RFPOD's and MTC and fought them every step of the way, and they dismissed WITH PREJUDICE. Before trial. Yes, we have had this conversation before, but they can dismiss with prejudice before a trial (but would have to have good reason to do so) but I don't think laying low would be considered good reason.

Just my opinion.

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In my thought process, I feel like if I go through the trouble of submitting a MTC BOP with the most likey outcome being that I would lose, I seems more logical to proceed to the next phase.  To me it feels like it I am litigating in good faith to give them more time and yet by proceeding to the discovery phase I am moving forward.  This, to me, does serve notice that I'm not just sitting back and doing nothing and it keep them busy on this case as well (Knowing they don't want to be).  Meanwhile the 30 days extra says that I have given them is nearing.  At this point, I beleive would be a good time to submit the MTC BOP. 

 

Is this sound reasoning?

 

I'm looking for a sample letter to begin the discovery phase.  Does anyone out there have something I can look so I can use as a template to write mine?

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