JR42

Being sued by Razor Capital in California

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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?

You say it seems logical to move on to the next phase (as you will likely lose the motion) but then you say you believe it's a good time to submit the MTC BOP. Either one is probably a good thing to do.

There are usually more than one thing you can do, and a few types of strategies. A lot of people do like ASTMedics strategy and don't press them or force them to produce the docs. They lay low and then hit them with the CCP 96 (and do little else) and it works. Some people do not even file MIL's (which I would not recommend).

I personally would hit them with everything you can think of (and a few of my own personal touches). Straight for the jugular and apply constant pressure. I would force them to prove every single element in the complaint and produce every single document needed to do that. Then I would challenge every bit of it, with MIL's for everything. I would make sure the lawyer was sick and tired of me before the pre trial stage even begins, and make sure I did everything possible to make them dismiss the case. I told the lawyer if the dismissal was not with prejudice that I would see him at the jury selection.

I would fight them like you would a cancer.

Don't even worry about litigating in bad faith, you are far from that. You have every right to actively defend your self and see proof (by ADMISSIBLE evidence).

As far as discovery goes; all you need is a simple set of RFPD's. There are samples all over here. I will paste a simple list below that will work, although I have seen one that is worded better by Calawyer, but you get the idea:

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.

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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.

I'm talking about in those cases where the defendant can't see the case through to the end. I want to be sure that they know that setting is ok if it is a win in their book. If they run a risk of going to trial and loosing far worse then what has to be done has to be done. There is no shame is settling and they should remeber that.

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I'm talking about in those cases where the defendant can't see the case through to the end. I want to be sure that they know that setting is ok if it is a win in their book. If they run a risk of going to trial and loosing far worse then what has to be done has to be done. There is no shame is settling and they should remeber that.

Agreed.
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JR,

I have been keeping an eye your thread from a distance, but following. IMO next steps look like this:

1. Because they didn't produce any statements at all, only Bill of Sale information. Further, the reason they asked for more time is that they know they need the statements to meet the CCP454 request. Once the extended time has elapsed I would file the MTC further BOP. Bill of Sales do not make an "account", under any cause of action. You may want to give them a call and see what the timeline is, but they will need to spend the money to get what statements are available. If you wait and do this in discovery via RFPOD they simply are holding their funds longer prior to spending the money to buy the statements needed.

Force their hand now.

2. The reasoning is your discovery requests need to be targeted at letting them know, you know they can't win. Example, if you already have the statements.

Defendants Request for Admissions #1- Admit that Exhibit #1, Plaintiffs Account Statments attached are the sole business records of First National Bank of Omaha?

If they admit to this then they will need an affdavit or witness from FNBO. If they deny then you know they will be trying to have someone from Razor authenticate the records...The reason FNBO sold this account is they are done, so they aren't likley to be sending any witnesses or suppling any affidavits other than the Bill of Sale.

So continuing to get the "account" via the BOP is not a bad move. If you do lose then you request in discovery, but it is a big risk for them not to get these prior to a BOP hearing. If they do produce before hearing you drop the hearing....

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I really appreciate the advice above.  I did contradict myself a bit in my last post.  After looking it over it looks like perhaps I was half asleep or something,  Anyway, on Wednesday it will have been 30 days since they last sent me the request for more time.  I guess it's possible they may still send me something, but I'm starting to think they are not even bothering with me.  I have decided to do go ahead and move forward with both filing the MTC this week and send the RFPD's at the beginning of next. 

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So I actually went off script because I wasn't going to have time to work on this and sent them a 2nd M&C letter essentially giving them until the end of September to respond.  I confirmed they received the letter with the return receipt I requested.   And to this date, they have not sent anything.  They basically ignored the fact that I granted them all the additional time.  I have yet to file a MTC because others on here say that it's likely a waste of my time and I will not win.  Does that change at all now that I have given them basically 2 months to produce what I asked for?  I have yet to send them any RFPD's, but am working on that now.  I now have more time to work on this.

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If they haven't given you ANY statements, I would file the motion.  You might end up with an order of preclusion.  That is the remedy the code provides and you have given them tons of time.

 

How are you supposed to defend the case if you don't know what you are being charged for?

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If they haven't given you ANY statements, I would file the motion.  You might end up with an order of preclusion.  That is the remedy the code provides and you have given them tons of time.

 

How are you supposed to defend the case if you don't know what you are being charged for?

I wanted to see about getting your opinion on this: What about filing a motion to "preclude evidence from being introduced at trial"; with no mention at all of compelling a further BOP?

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The motion should be entitled "Motion to compel further BOP or, in the alternative, to preclude evidence."  You ask that plaintiff be ordered to produce all account docs in 10 days.  If plaintiff doesn't (and they have now had much more time than the code allows), the Court should preclude plaintiff from introducing at trial anything other that what you have been given to date.

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Fill out and file a CMC statement:  http://www.courts.ca.gov/documents/cm110.pdf

 

The parties are supposed to meet and confer before filing the CMC statement.  Call plaintiff and they probably won't respond.  THen you can say so in your CMC statement.

 

The CMC itself will be no big deal.  Court just wants to make sure that everyone has been served and has appeared.  The Court might set a trial date or another CMC to set a trial date.

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Not a big deal JR42. Just call them today and make the meet and confer attempt. Then write that in your statement. At my CMC, neither party had attempted a meet and confer and judge never said anything about it. Not even sure if he looked at the CMC statement; was more concerned with setting a trial date and discovery cut-off.

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They did not attempt to meet and confer with you either, and being lawyers should know the rules.

 

There were a few messages left on my voice mail from someone who claimed to be with plaintiff's law firm, but the person left no details of what they wanted and just asked me to call them back.

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There were a few messages left on my voice mail from someone who claimed to be with plaintiff's law firm, but the person left no details of what they wanted and just asked me to call them back.

Not if there's no record of it there wasn't.

 

I doubt you have anything to worry about as far as the CMC goes, the judge probably won't even ask about it.

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Agree with Anon Amos here, doubtful you need to worry about that with the CMC.

 

I got a phone call from the JDB after they filed suit, answered it. They wanted to talk about the lawsuit but I cut them off and let them know I wouldn't be speaking to them over the phone about the case; that any communication from me would come in writing in the form of court filings, etc. They never wound up writing anything about a meet & confer in their CMC statement. Also they filed/served it 7 days before the CMC, as did I. Judge never mentioned the statement at, didn't care it was late either.

 

IMO, the thing to think about when it comes to the CMC is how long of a timeline do you want, how long until you want to go to trial? The contract lawyer in mine asked the judge for 1 year. The judge scoffed and said 4 months ("let's get this going and done with"). Looking back, I'm glad he denied them their year for prep. I was still trying to get a grasp on the concepts of the defense and thought I needed all the time I could get - but these scumbags are filing suits left & right and need that year to try and get ready, cutting down their prep time hurts them, IMO.

 

My trial is this week and I get the feeling the JDB is just a bit overwhelmed by the case load and not paying enough attention. Their trial brief came in yesterday (still not seeing it filed with the court even though they sent it to me Friday) and it didn't address the arguments in my trial brief at all. No opposition to my MIL either. It was very generic and even mentioned some things that have nothing to do with the case. They're not ready, I don't think. (of course I won't be taking anything for granted, either ;) ).

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. No opposition to my MIL either. It was very generic and even mentioned some things that have nothing to do with the case.

Good luck at your trial (assuming It gets that far). I would harp on theses two important points you mention here as well as your other arguments.

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My trial is this week and I get the feeling the JDB is just a bit overwhelmed by the case load and not paying enough attention. Their trial brief came in yesterday (still not seeing it filed with the court even though they sent it to me Friday) and it didn't address the arguments in my trial brief at all. No opposition to my MIL either. It was very generic and even mentioned some things that have nothing to do with the case. They're not ready, I don't think. (of course I won't be taking anything for granted, either ;-) ).

 

Good luck at your trial.  Do you have a thread on here concerning your case that I can check out?

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Good luck at your trial.  Do you have a thread on here concerning your case that I can check out?

Thanks!

 

My thread is here: http://www.creditinfocenter.com/community/topic/320392-midland-suing-me-gearing-up-for-the-fight/

 

I have gone about my case by studying other threads, like ASTMedic's, HomessinCA's, and a few others. I posted back to my own thread only when I couldn't find a a particular thing in those other ones - so you might find mine a little sparse. Once my trial is done and I've had some time to rest my brain, I'll update with some sort of summary / fill in some gaps.

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Excellent advice here.  Therefore if this happens to come up in my CMC, I should probably object if the lawyer requests a year and ask for 3 or 4 months, correct?

I am sure most people would say yes to that, but it also depends on you. In my case I wanted the lawyer to do just that, and was hoping to be able to stretch it out for as long as possible. You can use the time to your advantage and learn, and or/ force them to continue working on the case in efforts to convince them to dismiss. I was also going to a jury trial and needed more prep time.

 

A lot of people would say to do the exact opposite of this; it depends on you and your strategy.

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Excellent advice here.  Therefore if this happens to come up in my CMC, I should probably object if the lawyer requests a year and ask for 3 or 4 months, correct?

All depends on you. Shorter time frame makes it tougher on the plaintiff, IMO, that's why they always ask for longer. But it also makes it tougher on you, being that you're learning the ropes. You need time to prepare, digest it all, etc.

 

A longer period can certainly benefit a defendant learning the defense, the procedures, and the paperwork. Ultimately, I think the plaintiffs lack of evidence in a short time frame could be just as lacking over a longer period. May depend on the individual details of the case.

 

I'm self-employed and I spent alot of what should have been 'working-time' getting ready for trial. Some don't that option.

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