avvid Posted June 20, 2013 Report Share Posted June 20, 2013 I'm being sued by CACH for CC debt. The OC is GE Capital. Summons containsComplaint For:1. Breach of Contract2. Common CountsCause of Action:1. Breach of Contract2. Account Stated So far I have:Responded to the summons with general denial.Responded to their Special Interrogatories with objections and denials.Responded to Request for Production of Documents with "i don't have anything.."Responded to Request for Admissions with objections and denials.Sent them Special Interrogatories.Sent them BOP request. I realized later that in the BOP I didn't ask for proof that CACH owns the account. This is roughly what I sent them: Demand is Hereby Made that pursuant to Code of Civil Procedure, Section 454, defendant XX, demands that plaintiff, CACH LLC, provide a bill of particulars setting forth the items and details of the account on which the complaint is based....In particular, demand is made on plaintiff CACH, LLC to provide the dates and description of services, and specific charges for the services and the entity and/or person providing the services, including the date and sale price of each item described in the plaintiff's complaint. This includes, but is not limited to, the following:1. The defendant's application for credit card issued by the original creditor GE CAPITAL ....... ------------- Did I not do this correctly? Link to comment Share on other sites More sharing options...
shellieh98 Posted June 20, 2013 Report Share Posted June 20, 2013 you requested the BOP which was correct. Now you must also serve on them a request for documents. There are alot of great samples around this site. Link to comment Share on other sites More sharing options...
bravoflaca2000 Posted June 26, 2013 Report Share Posted June 26, 2013 The BOP is a good start, I got them to give me docs this way . They objected in their letter but also stated that in good faith they would provide the following docs. They sent alleged proof of ownership and one statement , I moved on to discovery and did not push for anything more .Kept admissions and request for docs simple . Remember it does not matter what they send you , in the end they need someone to authenticate. Fire away and keep them burning money .From what I learned from Calawyer is BOP only relates to the transactions . When did you send BOP ? I sent mine before I filed my answer . Link to comment Share on other sites More sharing options...
avvid Posted July 4, 2013 Author Report Share Posted July 4, 2013 I sent the BOP on May 11th.They answered with a letter refusing to respond with any documents, citing Distefano v Hall.I saw other users' posts that were similar and found out that that case actually worked against them. So, I sent a meet and confer letter on June 22nd explaining this fact and gave them 10 days to respond.They answered back with the same objection but as a sign of good faith they attached several documents.In the letter they mentioned that they will furnish all the documentation they have in their possession which includes: 1.The card member agreement - They didn't give me the agreement 2. Bill of Sale with redacted loan schedule -The Bill of Sale was a generic document (actually several copies of the same document with a combination of different signatures by a GE Capital, General Electric Capital Corp., GEMB lendin, Monogram Credit Services LLC, etc). After that was something called notification files with general information about my account (acct #, address, name, etc), none of which indicated new ownership or sale. Also there was no redacted loan schedule at all. 3. Affadavit of Sale - Standard prefilled Notarized document by a notary in Minnesota stating that a representative of GE Capital Retail Bank has "reviewed the information below" regarding the debt payable to GE which was sold to CACH. 4. Statements dated Feb 2011 - Feb 2012 - only one statement was missing This is what the Bill of Sale looks like: ----------------------------------------------------------------------------------------------------------------------------------------------AFFiDAVIT OF SALE STATE OF: Minnesota :SS COUNTY OF: Ramsey BEFORE ME, on the day and date set forth below, the undersigned Notary, being qualified and commissioned in and for the county and state aforesaid, personally came and appeared NAME OF BANK EMPLOYEE IN BOLD, who being duly sworn, did depose and say: Affiant is a Collections Operations Representative at GE Capital Retail Bank, issuer of the relevant consumer transaction/credit card. I have reviewed the information below regarding the debt XXXXXACCNT#XXX (the "Account") made by ME (the "Debtor") made payable to GE Capital Retail Bank and subsequently sold to CACH, LLC. The amount owed on the account on 3/22/2012, $XXXX.XX was sold to CACH, LLC and is reflected in the system of GE Capital Retail Bank. The following statement pertains if the debtor referenced above is a state of California resident: I certify under the penalty of perjury under the laws of the state of California that the foregoing is true and correct. Executed this 29th day of March, 2013 signature of bank employee NAME OF BANK EMPLOYEE IN BOLDCollections Operations Representative Sworn to and subscribed before me this 29 day of March , 2013 signature of notary public Notary Public [Notary's Stamp here] My commision expires: 1-31-15 Version: 1.0.1_AOS_06_06_2012 - St. Paul ---------------------------------------------------------------------------------------------------------------------------------------------- I'm trying to understand the Bill of Sale and Affidavit of Sale documents and interpret what they mean and hence what my next step will be. It seems to me that the BOS is insufficient as it doesn't refer to a specific account. I'm guessing the notification files doesn't count as that specification, am I right?Also, there is no loan schedule which I don't even know what that is or means. For the affadavit of sale, is it admissable in court?I know that according to CCP 98 :"A party may, in lieu of presenting direct testimony, offer theprepared testimony of revelant witnesses in the form of affidavits ordeclarations under penalty of perjury. The prepared testimony mayinclude, but need not be limited to, the opinions of expertwitnesses, and testimony which authenticates documentary evidence. Tothe extent the contents of the prepared testimony would have beenadmissible were the witness to testify orally thereto, the preparedtestimony shall be received as evidence in the case, provided thateither of the following applies: (a) A copy has been served on the party against whom it is offeredat least 30 days prior to the trial, together with a current addressof the affiant that is within 150 miles of the place of trial, andthe affiant is available for service of process at that place for areasonable period of time, during the 20 days immediately prior totrial. ( The statement is in the form of all or part of a deposition inthe case, and the party against whom it is offered had anopportunity to participate in the deposition. The court shall determine whether the affidavit or declarationshall be read into the record in lieu of oral testimony or admittedas a documentary exhibit."They did not provide an address for the affiant. However, if they were to provide an address, it needs to be within 150 miles of the court. Seeing as how the notarized document was made in Minnesota I'm guessing the Affiant also lives in that state. This isn't looking good for the other side so far. Do I have to wait until a court date is set to subpeona the witness 30 days prior or is there something I can do now to get the case dismissed? I've been reading up on other posts that it can be thrown out as heresy.Also I saw something about a MOTION TO COMPEL FURTHER RESPONSE TO DEFENDANTS BILL OF PARTICULARS OR, IN THE ALTERNATIVE, TO PRECLUDE EVIDENCE AT TRIAL.Is that what I should send? I haven't sent a POD request yet. Do I need to? Link to comment Share on other sites More sharing options...
bravoflaca2000 Posted July 5, 2013 Report Share Posted July 5, 2013 Yes you have to wait until trial is set and 20 days prior to that , but in order to subpoena it has to be in the form of an affidavit , any affidavit submitted needs to meet all the specification of ccp98 to be allowed into evidence. The MTC is up to you , but remember BOP should be used to push only the transactions on the account . Calawyer once told me it does not focus so much on the contracts. You have to wait for them to send you ccp98, but you should request ccp96 45 day prior to trial to lock them into what they will be using. Take a look at page 2 of my post, I started MTC but did not finish it or turn into court. I was giving good advice from ASTMEDIC, I went with what he told me due to my comfort level. http://www.creditinfocenter.com/community/topic/316868-midland-funding/page-2 1 Link to comment Share on other sites More sharing options...
avvid Posted August 2, 2013 Author Report Share Posted August 2, 2013 Yes you have to wait until trial is set and 20 days prior to that , but in order to subpoena it has to be in the form of an affidavit , any affidavit submitted needs to meet all the specification of ccp98 to be allowed into evidence.The MTC is up to you , but remember BOP should be used to push only the transactions on the account . Calawyer once told me it does not focus so much on the contracts.You have to wait for them to send you ccp98, but you should request ccp96 45 day prior to trial to lock them into what they will be using.Take a look at page 2 of my post, I started MTC but did not finish it or turn into court. I was giving good advice from ASTMEDIC, I went with what he told me due to my comfort level.http://www.creditinfocenter.com/community/topic/316868-midland-funding/page-2 Thanks for the advice.I'm working on my next move now. Got sidetracked by life... As far as the BOP, would it look bad if I don't send a second meet and confer letter before MTC? On that note, What is the deadline for filing a MTC? I'm still undecided on filing the motion.I understand the limitations of BOP. Keeping those in mind, they did not actually send all of the documents they said they would in their letter (No credit card agreement, No Application for Credit, Insufficient Bill of Sale due to lack of a specific account number) so I think it might be worth sending MTC.I'm trying to weigh the pros and cons.What are the cons besides forcing them to produce better evidence against me? Link to comment Share on other sites More sharing options...
bravoflaca2000 Posted August 2, 2013 Report Share Posted August 2, 2013 I will repeat what ASTmedic once told me, why give them reason to get more paperwork to use against you , I did not file mine because I was not comfortable with my knowledge of the law . I would send one last meet and confer and move on to discovery and beat them at trial, they always fold the law is on your side . Link to comment Share on other sites More sharing options...
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