American Express vs me, Patenaude & Felix, CA, Motion to Compell BOP

[jene_rae]

Hi everyone!  I have two judgement's against me 1)CACH and 2) American Express Bank, FSB.  I have posted before on CACH but this will be my first on AXP.

 

I live in: California, San Joaquin County

 

On 9/17/12 Law offices of Patenaude & Felix, A.P.C filed a COMPLAINT-CONTRACT against me.

Plaintiff: American Express Bank, FSB

Defendent: Me

4. x doe defendant(s) (specify Doe numbers): 1 through 15 are persons whose capacities are unknown to plaintiff.

6. x this action is subject,  x Civil Code section 1812.10

7. x a defendant(s) lives here now.

8. x common counts, x (other) refer to Other allegations in number 9

9. x Other allegations: Before commencement of this action, in those cases where recovery of costs is dependent on such notices, Plaintiff informed the defendant(s) in writing it intended to file this action and that this action could result in a judgement against defendant(s) that would include court costs and necessary disbursements allowed by CCP Section 1033( (2)

10. a. x damages of $5,308.72, d. x (other) For such other relief as the Court deems just and fair.

CAUSE OF ACTION-Common Counts 

Attachment to x complaint

CC-1 Plaintiff: American Express Bank, FSB

alleges that Defendant(s): Me

became indebted to x plaintiff

a. x within the last four years, x because an account was stated in writing by and between plaintiff and defendant in which it was agreed that defendant was indebted to plaintiff.

b. x within the last, x four years, (6) x (other) This cause of action is based upon account number xxxx for the sum by which Defendant has been unjustly enriched by virtue of Defendant receiving monetary or other benefit, by Defendant knowingly requesting the funds at issue and/or accepting the benefits bestwoed.  It is inequitable for Defendant to retain said benefits without repaying Plaintiff the value thereof.

cc-2. $5,308.72

cc-4 x (other) For such other and further relief as the Court deems just and fair.

Attached:

Declaration Re: venue

Civil Case cover sheet: x Limited, x Contract Rul 3.740 collections (09), 3. remedies sought: x monetary, 4. Number of causes of action: One, 5 This case x is not a class action suit, Notice of

Notice of Case Assignment

 

They have sent me their Discovery and I replied.

 

I sent them a BOP.

 

They had a GENERAL OBJECTION:

stating that" it is inappropriate for Plaintiff American Express's Account Stated cause of action because an Account Stated cause of action is deemed to have merged the various items on which the earlier accounts are based, i.e., there is nothing left to itemize.  Section 454 is not applicable to a contract or a promissory note which has an account for its consideration.  See Ahlbin v. Crescent Commercial Corp. (1950) 100 Cal. App. 2d 646, 648; Auzerais v. Naglee, 74 Cal 60. [15 p. 371].  Accordingly, Defendant ME is strictly limited to Unjust Enrichment cause of action. Caruso v. Snap Tite, Inc. 275 Cal. App 2d 211.  etc.... Plaintiff has not yet completed its investigation of the facts related tot his action, and has not yet completed its preparation for trial.  Consequently, the following Bill of Particulars are given without further prejudice to this answering party's right to produce, at time of trial, subsequently discovered to be material.

Except for the documents provided herein, no admission oof any nature whatsoever is to be implied or inferred.  The fact that any admission herein has been answered should not be taken as an admission or a concession of the existence of any facts set forth or assumed by such admission, or that such response constitutes evidence of any fact thus set forth or assumed.  All responses mus be construed as given on the basis of present recollection.

In general, objection is made to all admissions because literal compliance would require responses that are burdensome and oppressive.  This responding party will provide those responses that are responsibly appropriate in an effort to comply with the proper obligations imposed upon them as part o the discovery in this action.

RESPONSES

1. The complaint is based on an quantum merit, and an account stated and Defendant's breach thereon in the principal amount of $5,308.72.  True and correct copies of the statements Plaintiff is currently ale to furnish are attached hereto as Exhibit "1" and incorporated herein by reference.  plaintiff reserves the right to produce more billing statements as they become available or produce them at trial.

2. The billing statements demonstrate a course of conduct wherein Defendant ME repeatedly charged on a revolving charge account issued by Plaintiff American Express.  Further, these statements demonstrate Defendant ME continuous failure to pay the indebtedness incurred.

3. Plaintiff American Express reserves the right to produce other evidence as it becomes available, including, but not limited to, records kept int he ordinary course of business.

Dated January 2, 2013

 

There exhibit "1" consisted of copies of credit card statements for the months of 2/21/11-1/21/12.

 

I then sent them a Meet & Confer letter stating: 

....As described below, plaintiff's response dated January 2, 2013 is entirely deficient to the point of non-existence, as no evidence was provided.  As a preliminary matter, plaintiff's objection to Defendant's Bill of Particulars is not well taken.  Plaintiff has alleged causes of action for Account Stated and Quantum Merit.  A Bill of Particulars is appropriate under this legal theory as plaintiff concedes in ultimately responding.......etc.

Dated: May 17, 2013

 

They replied with: 

I am in receipt of your letter dated May 17, 2013.  Attached is a copy of Plaintiff's response to Demand for Bill of Particulars with the corresponding statements.  These statements may have been inadvertently misplaced if you had not recieved them.  Please let me know if this response is not sufficient.

The attached the same "GENERAL OBJECTION as above and the same exhibit "1"

 

I'm now working on my Notice of Motion and Motion to Compel bill of Particulars; Memorandum of Points & Authorities; Declaration of (ME) In Support of Motion to Compel Further Response to Bill of Particulars and I called the court and already have my reservation number, date, time and dept.  I'm also including a DISC-015 Statement of Witnesses and Evidence and my Discovery to them.

 

QUESTIONS:

 

1)  Do I go ahead and file the  Notice of Motion and Motion to Compel bill of Particulars; Memorandum of Points & Authorities; Declaration of (ME) In Support of Motion to Compel Further Response to Bill of Particulars.

2)  Should I also object to there Exhibit "1"

 

Thank you so very much for reading my post and helping me in any way.

[jene_rae]

Can anyone kindly review my discovery and make sure I didn't already shoot myself in the foot.

 

I attached all my Disovery files.

 

Plaintiffs Request for Admissions

Defendants Response Admissions

Plaintiffs Form Interrogatories

Defendants Response Form Interrogatories

Plaintiffs Special Interrogatories

Defendants Response Special Interrogatories

Plaintiffs Production of Documents

Defendants Response Production of Documents

Patenaude and Felix Meet and Confer

Defendant Response Meet and Confer

 

Thank you, Thank you, Thank you!

 

 

[stanislavbr]

I'll have to agree with them on the BoP.  They are suing for account stated only.  BoP doesn't apply.  Don't motion to compel the BoP.

[racecar]

quantum meruit-Caruso v. Snap-Tite, Inc., (1969) 275 Cal. App. 2d 211, 214-215.

 

Even though the code authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

 

If the complaint has a cause of action "money had and received", “money lent or paid”, “goods sold and delivered”, or “quantum meruit” you can also ask for a BOP.



To PLAINTIFF________ and [its/their] attorneys of record herein:
DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account. [add anything else relevant i.e. contract assigning the account to plaintiff]

Dated: _________ _____________________
DEFENDANT

 

[jene_rae]

I'll have to agree with them on the BoP.  They are suing for account stated only.  BoP doesn't apply.  Don't motion to compel the BoP.

 

That's what I was afraid of.  Thanks!

[jene_rae]

quantum meruit-Caruso v. Snap-Tite, Inc., (1969) 275 Cal. App. 2d 211, 214-215.

 

Even though the code authorizes a demand for a bill of particulars in an action “on an account,” it is not available in an action on an account stated. Distefano v. Hall, (1963) 218 Cal. App. 2d 657, 677.

 

If the complaint has a cause of action "money had and received", “money lent or paid”, “goods sold and delivered”, or “quantum meruit” you can also ask for a BOP.

To PLAINTIFF________ and [its/their] attorneys of record herein:

DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account. [add anything else relevant i.e. contract assigning the account to plaintiff]

Dated: _________ _____________________

DEFENDANT

 

 

Thanks, but doesn't look like I'll be able to go forward with the BOP.

[jene_rae]

When American Express (Patenaude & Felix) sent me copies of 1 years worth of cc statements.  I have not received any other proof that I owe this debt.  Should I send them a meet and confer letter objecting to the discovery that they sent me and if so what would I need to say?

 

Thanks

[jene_rae]

HELP NEEDED court tomorrow:

-I PM this to Calawyer and thought I would post on my thread for others to respond as well.

 

Plaintiff's Complaint stated damages of $5,308.72 and account number of xxxxxxxxx392004. Plaintiffs trial brief states damages of $4,827.01.  Plaintiffs Discovery request and meet and confer had account numbers xxxxxxxxxxx2004.  Different account numbers and different damages requested.  Do these errors cause them to fail any Elements?

 

Since they are suing me for common counts and they are the OC I'm sure they will win most of the elements including standing.  Thought the above could be a long shot for winning so thought I would ask.

 

PS-I did not file a trial brief and couldn't find any local laws that it was needed. San Joaquin County, Stockton Division.  Should I create one and bring it to court?

 

Thanks for all your help. 

[HotWheels96]

I didn't see anything about a witness, CCP96, CCP98, etc. Anything on these?

 

If your trial is tomorrow, I think a Trial Brief might be too late, but maybe draft one and when you show up tomorrow you can mention you have one?

[jene_rae]

I didn't see anything about a witness, CCP96, CCP98, etc. Anything on these?

 

If your trial is tomorrow, I think a Trial Brief might be too late, but maybe draft one and when you show up tomorrow you can mention you have one?

No CCP96 and No CCP98.

[HotWheels96]

Wow, so how do they intend to use the statements at trial? Have you drafted and sent a MIL?

 

(Sorry, I'm sure you listed it somewhere but I'm attempting to multitask and look up anything I can about a friend's case.)

[jene_rae]

They have no statements from witness?  No MIL was sent.

[helpme]

Hi Jen,

Use the case laws I posted on your thread with contracts, damages.

[jene_rae]

Thank you Helpme! I will search for those.

I arrived at court at 8:30 and my hearing is at 1:30 today. Worked for me because was able to watch a Defendant pro se win a case.

After that, there was no one in the court room so I asked if I could ask a procedure question and the Judge said "you have sat in my courtroom all morning there you have the right to ask away"

I told him I'm a defendant for 1:30 and wanted to understand how to proceed with objections. He was very happy to hear I was doing my homework. . They looked at my case and said the Plaintiff arrived early this morning and asked for a continuance but would be back at 1:30 to see if I appear. I asked the Judge if I can object to the continuance and he said Yea but most Defensants would be happy for more time. Now calawyer mentioned in a thread if No witness be prepared for Plaintiff to ask for an oral continuance and this is not allowed. I know there is rule for it in the threads but I'm on my iPhone in a parking garage 2+hours before trial!

Does anyone recommend me to object and ask for this to be taken care of today? I'm hoping they don't bring a witness and it catches him of gaured.

[helpme]

If there is no witness there is no case. You will not ne able to cross examine a document made by their witness and you should state that. Then ask the judge for dismissal with prejudice. The most that can happen is the judge grants the continuance but at keast your objection is on the record if you need to appeal. Also state they were the ones who brought the case against you and should not be given anymore time.

[jene_rae]

Thanks Helpme, HomelssinCalifornia, Calawyer and all those that have given me great advice.

 

So this is what happened at court today.  The judge already knew that Plaintiff was going to request an oral continuance and new I wanted to object, due to my private conversation with the judge since I hung out all morning in his courtroom(Bonus).  So when it was our time the Plaintiff approaches me and said I thought you weren't going to make it.  He was so mad...and asked if we could do a continuance so I said no I'm here and I'm healthy and I'm ready.  He became very frustrated with me.  It felt good to see him stressed and fanning himself.  He told me he had no court papers on the case because he thought I wasn't going to appear.  Now the Judge calls us and the Plaintiff whines about not being prepared because he thought I was going to file for a continuance for health reasons, and requested the Continuance for them.  I told the Judge I object and that I'm ready.  The Judge thought he read a CCP98 but it was some CCP1987 Subpoena for me to appear at Trial.  The Judge was all ready to give me the win thinking they subpoena me to appear.  The Judge then clarified that he will have to grant the continuance and he really wanted me to agree so I smiled and paused and said ok then.  I piped up and mentioned that they haven't even responded to my Discovery Request and CCP96.  He asked if they answered it and I said no.  The Judge then said I'm reopening Discovery!  We then went on to set a date and Plaintiff wanted December 2013.  I said no and that I wanted it earlier(thinking that would cut them short for a CCP98 and answering all my discovery).  We decided on October 21st, 2013.  The Judge explained that I need to jump on this Discovery and that I don't have much time also to be very careful of the dates so that I get my Discovery in!! (oh boy another hint for me to figure out).  The Judge was very kind and the Plaintiff stormed off. 

So, my question is do I need to send Plaintiff all my Discovery again or should another Meet and Confer do?  I already sent them BOP, Interrogatories, Admissions, Request for Documents, CCP96.  I'm thinking of sending another copy of them today to get the clock rolling just encase.

Should I be filing something else??

I'm so excited to learn more and move forward.

Thanks everyone. 

[shellieh98]

You don't need to send it again, as long as you have your CMRRR receipt, and proof of service if that is required by your state. You would send them a meet and confer letter, giving them 10 additional days to send it to you. So you need to add mailing time, so add 5 days to that, if you don't have it by then, I would file a motion to compel/preclude for the things you asked for. Also check you rules, you may also be able to have their admissions deemed admitted. ( this would be great if one of your admissions said something like admit plaintiff has no standing to sue in this action).

[shellieh98]

Lol just read your other post, where they said since you did not make the 30 day deadline, they would not answer your discovery. All the more reason to give them the 10 days. You might include your entire discovery pack you sent them with your meet and confer and say " for your convenience I have included this 2nd copy of my discovery requests.

[helpme]

Good job in court. I agree with shellie write a letter and in addition to the 10 days you are giving them remind them that for not responding to your document request they waived any objections and if they don't respond by your date, you will file a motion to compel. Remember if you decide to do this it is alot of work but as you have already noticed everyone here are willling to help.

[jene_rae]

Thanks!  This sight is so helpful and you guys make it possible to fight these battles.

 

I'm getting on this first thing in the morning and I'm starting the drafting of my motion to compel.  I had to just file one against CACH today in another lawsuit. Yak!

[calawyer]

When did they respond to your discovery?  Did you send a meet and confer letter?  Under the Code, you have 45 days from the response to file a motion to compel.  Add 5 days if the response was served by mail. 

[jene_rae]

When did they respond to your discovery?  Did you send a meet and confer letter?  Under the Code, you have 45 days from the response to file a motion to compel.  Add 5 days if the response was served by mail. 

 

BoP Dated: 12/26/2012

Plaintiff Objection Response:1/2/2013

Defendant Meet & Confer:5/17/2013

Plaintiff Objection Response: Sent copy of their first objection 1/2/2013

CCP96 Dated: 7/9/2013

Plaintiff Objection Response Dated: 7/25/2013

Special Interrogatories, Admissions, Request for Documents Dated: 7/9/2013

Plaintiff Objection Response Dated: 8/7/2013

[jene_rae]

Ouch!  So if I mailed a motion to compel for Interrogatories, Admission, Request for Documents and CCP96 tomorrow 8/28 CMRR my 21 days plus 5 for mailing would put me at 9/23.  Our trial date is set on 10/21 so IF I'm correct my 30 days before trial discovery cut off is 9/16???

 

Did I calculate this right?  Now I'm sweating bullets!

 

If I first have to send a Meet & Confer giving them 10 days +5 for mailing then I'm really screwed no wonder the Judge was trying to get me to push the date to December.  I'm so stupid.

 

Do I have any chance here?  What's my next move?

[jene_rae]

So I drafted a motion to compel to have ready to send is this ok?

 

AMERICAN EXPRESS BANK, FSB

          Plaintiff,

     vs.

,

          Defendant,Pro Se

)

)

)

)

)

)

)

)

)

)

Case No.: 

NOTICE OF MOTION AND MOTION TO COMPEL RESPONSE TO INTERROGATORIES, REQUEST FOR PRODUCTION OF DOCUMENTS AND REQUEST FOR ADMISSIONS

 

Reservation Number:

DATE:
TIME:
DEPT:

 

 

     Notice is hereby given that at     on           , in Department     of the above court, plaintiff will move pursuant to C.C.P. § 2030.290 for request for interrogatories; for request for production of documents, C.C.P. § 2031.300; and for request for admission, § 2033.250 to compel plaintiff AMERICAN EXPRESS BANK, FSB responses to defendants Request for Interrogatories, Requests for Production of Documents and for Request for Admissions.  Pursuant to C.C.P. § 2023.010 to 2023.040, defendant will further move that sanctions be imposed against defendant for failing to [completely] respond to the same.

     This motion will be based upon the fact that defendant served her Interrogatories, Request for production of Documents and Request for Admissions on plaintiff on July 12, 2013, and the plaintiff has not served any response.  Sanctions are requested.

 

I also drafted a Meet and Confer ready to send if my timeline mentioned above does not allow me to send above MTC.  Is this ok?

 

Dear Attorney at Law,

I am in receipt of Plaintiff’s responses to Defendant’s discovery; Request for Production of Documents Set No One, Request for Admissions Set No One and Form Interrogatories Set Number One, dated 8/7/2013, mailed 08/8/13 and received on 8/10/13 for the above referenced matter. 

I am also in the receipt of Plaintiff’s responses to Defendant’s discovery CCP96 Request for Statement of Witnesses and Evidence dated and mailed 7/25/2013 for the above referenced matter.

As you must know, the responses received are incomplete in material ways and further responses are required.  This is an attempt to meet and confer to avoid the necessity of motions to compel.

If plaintiff does not do so within 10 days, defendant will file a motion to compel and will seek sanctions for having to bring an unnecessary motion.

I have enclosed another set of copies of the above mentioned discovery.

If you need to speak with me further about the matter feel free to contact me at the phone number at the top of this letter.

 

Which avenue do I proceed with: Meet & Confer or Motion to Compel?

 

Thanks!!

[jene_rae]

Trial Brief to be filed and mailed tomorrow.  Could anyone please review, add and/or comment?

 

 

I.                   INTRODUCTION

AMERICAN EXPRESS BANK, FSB ("Plaintiff") is attempting to collect on a debt alleged to be owed by defendant, (“Defendant”).

Plaintiff’s claim for account stated lacks proof, because Plaintiff has failed to show that the elements required to be an account stated have not been met, and Plaintiff has failed to show that a contract existed between Defendant and the Plaintiff.

Plaintiff’s claim for damages of $5,308.72 is not the same amount requested in the Plaintiff’s Trial Brief, under Introduction of $4,827.01 and under B. Defendant is Obligated to Pay the Entire Amount Due, $4827.01 and also mentioned in the IV Conclusion, Defendant failed to pay as agreed, leaving a balance of $4827.01.

Plaintiff’s claim that the account number is xxxxxxxxx392004 is not the same account number in the Plaintiff’s Trial Brief, under Statement of Facts as xxxxxxxxxxx2004.

Plaintiff’s Trial Brief, Plaintiff’s Exhibit List dated July 29, 2013, Exhibit “1” Copy of Card Agreement only matches up with one of two separate Card Agreements, Plaintiff sent with their Discovery dated October 1, 2013.

Plaintiff’s Responsive Statement of Witness and Description of Evidence [CCP§96] dated September 3, 2013 neither identifies the witness by name or address.

Plaintiff sent responses to my Discovery dated October 1, 2013 stating that “Original verifications will be forwarded to you by our office once they are received”.  Therefore Plaintiff’s responses to Defendant’s Request for Production of Documents Set No One, dated September 30, 2013, Plaintiff’s responses to Defendant’s request for admissions set No One, dated October 1, 2013 and Plaintiff’s responses to Defendant’s Form Interrogatories Set No One dated September 30, 2013 (NEED TO FINISH)

Plaintiff has failed to show that the alleged account is the result of authorized charges, a necessary component of credit account billing under the Fair Credit Billing Act.

Plaintiff cannot argue implied waiver as they have no showing that communication has occurred to settle the alleged account, a necessary element of the Account Stated theory of litigation.

Additionally, the failure to supply a Bill of Particulars is mandatory and failure to provide such response is indeed an error of law which is preserved for appeal.

Defendant has rigorously denied the allegations of the complaint based on the failure of Plaintiff to engage in basic discovery, submission of inadmissible hearsay in an effort to mislead the court as to the validity of their purported claims, and to attempt to deny defendant of inalienable rights in litigation, specifically Discovery, Cross-Examination, Personal and Subject matter jurisdiction, and admissible evidence to support their heretofore unproven claims.

II.                STATEMENT OF FACTS.

Plaintiff failed to produce a Bill of Particulars pursuant to CCP §454 and under CCC 128.7 and therefore should be precluded from admitting evidence.

Plaintiff’s response was defective to defendant’s request for statement of witnesses and evidence pursuant to California Code of Civil Procedure section 96.  Under the section, plaintiff must set forth the “names and addresses of witnesses” (OTHER THAN A PARTY WHO IS AN INDIVIDUAL) it intends to call at trial.  Plaintiff has not done so.  Instead, plaintiff has claimed that it intends to call “The witness currently designated as the Custodian of Records and Person Most Knowledgeable with regard to the business records of Plaintiff”.  This neither identifies the witness by name or address.

 Defendant answered the complaint with a general denial.  Defendant has meritoriously defended in good faith.  This lawsuit by Plaintiff has brought great distress on defendant.

III.             ARGUMENT

1. Plaintiff Can Not Prevail on its Account Stated Claim.
2. 
   

Plaintiff alleges an account stated. “An account stated is a document — a writing — which exhibits the state of account between parties and the balance owing one to the other; and when assented to, either expressly or impliedly, it becomes a new contract.” (Biltmore Press, 6 Cal. App. 3d at 901) “[T]he account, in order to constitute a contract, should appear to be something more than a mere memorandum;, it should show upon its face that it was intended to be a final settlement up to date. And this should be expressed with clearness and certainty.” (Coffee v. Williams, 103 Cal. 550, 556 (Cal. 1894))

“An account stated is an agreement, based on prior transactions between the parties, that the items of an account are true and that the balance struck is due and owing. To be an account stated, it must appear that at the time of the statement an indebtedness from one party to the other existed, that a balance was then struck and agreed to be the correct sum owing from the debtor to the creditor, and that the debtor expressly or impliedly promised to pay to the creditor the amount thus determined to be owing.” (Maggio, Inc. v. Neal, 196 Cal. App. 3d 745, 752- 53, 241 Cal. Rptr. 883 (1987) (quotation omitted))

In order to constitute an account stated, there must be an “element of finality” to the statement, which is missing when the parties continue transacting business and “statements [a]re sent periodically.” (Am. Fruit Growers, Inc. v. Jackson, 203 Cal. 748, 751- 52, 265 P. 926 (1928)) ”t is clear that a statement rendered cannot be said to be an account stated unless it is intended to be such and expressly or impliedly is assented to as such by the party to whom it is rendered. There is in the case before us no element of finality, as the parties were still transacting business. These statements were sent periodically and business was continued between them as before. There is no ground whatever for the contention that the account was rendered and intended to be an account stated, or that [the charged party], either expressly or impliedly, considered that it was such.”

 

Whether an alleged debt is an account stated is a question of fact. See, Fogarty v. McGuire, 170 Cal. App. 2d 405, 409, 338 P.2d 992 (1959)

“The action upon an account stated is not upon the original dealings and transactions of the parties. It is upon the new contract by and under which the parties have adjusted their differences and reached an agreement.... f in writing, it should appear to be something more than a mere memorandum and should show with clearness and certainty that it was intended to be a final settlement up to date.

Whether these conditions exist is usually a question to be determined by the trier of fact from all the circumstances of the case, and in reaching that determination reasonable inferences can be drawn in support of the claim of either party if there is any credible evidence warranting such action.” (citations omitted).

 

Plaintiff has failed to produce any writing which indicates that xxxxxx assented to the account between them. Because Plaintiff cannot present evidence showing an account stated other than the hearsay documents discussed above, Plaintiff has no admissible evidence of an account stated. Plaintiff cannot, therefore, meet its burden of showing an account stated.

IV.             CONCLUSION

Plaintiff is not entitled to any recovery on its Complaint.

For this reason, Defendant respectfully requests that the Court enter judgment in favor of Defendant xxxxx.  Defendant, xxxxxxx, requests this case be dismissed WITH PREJUDICE, that Plaintiff be ordered to remove all trade lines held in Plaintiff’s name against the Defendant from all credit reports, and prays for costs of suit in the amount of $505.36 plus any damages and any further relief the court will allow. 

Defendant is not an attorney and has never attended law school. Defendant has spent over 160 hours trying to maneuver around the legal system to figure things out on his own as pertain to this case, understand what is at issue and what Plaintiff’s case is, calculate defense and write pleadings, find and learn case law, travel to seek legal advice and assistance, and learn California statutes and codes and rules and other authorities and Court procedures.

Defendant was recently diagnosed with a rare disease, Psedutumor Cerebi and a movement disorder, Myoclonus Dystonia and  lost employment over 3 years ago being unable to work due to illness.

Defendant cannot afford an attorney and has had to represent himself.

Plaintiff depends upon the lack of legal expertise, sophistication, knowledge, and experience and the inability to afford qualified counsel on the part of the Defendants it targets for lawsuit.

This unwarranted and clearly evidentially unsubstantiated lawsuit against Defendant on the part of the Plaintiff, a sophisticated junk debt buyer with volumes of litigation experience on a national basis, has severely impacted Defendant’s health. Defendant has had to dedicate all his energies and time to research and prepare for this litigation on a full-time basis, which has meant that crucial time needed to pursue therapies has been irrecoverably lost since August 23, 2012 (date of service) to October 21, 2013 (date of trial) by Plaintiff’s pursuit of a case on which it knew it had no standing, should not have initiated, and should have dropped immediately even before it received an Answer.

This lawsuit has been malicious and frivolous.

This lawsuit has resulted in extreme emotional, physical, and economic hardship on the Defendant.

Plaintiff should be sanctioned and incur not only Defendant’s costs but be held accountable for reparations for damages and such other relief as the court may deem fit and reasonable. Plaintiff should be required to make immediate restitution and to remove all trade lines held by Plaintiff against Defendant from all credit reports.

This case should be dismissed with prejudice.

Executed at xxxxx, California and respectfully submitted on this 9th day of October, 2013.