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So, I was served yesterday...  

 

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1. Who is the named plaintiff in the suit? Unifund CCR, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Kenosian and Miele

3. How much are you being sued for? $2,XXX.XX plus interest, plus attorney's fees, plus cost of suit, plus other such relief as is fair

4. Who is the original creditor? (if not the Plaintiff) Citibank

5. How do you know you are being sued? (You were served, right?) Summons delivered at door (my boyfriend got it, since I wasn't home)

6. How were you served? (Mail, In person, Notice on door) Person

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? The first letter on 01/22/13, I sent a DV letter within 30 days, in response they sent a copy of statements from 2009 on 4/29/13 (and the amount on the statement was different than the amount they are trying to collect), then they sent the intent to sue on 5/15/13.  

9. What state and county do you live in? California

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Per the complaint, 11/2009

11. What is the SOL on the debt? 4 years

12. What is the status of your case? Suit served? Motions filed? Case intake and summons

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No but I probably should have.  

14. Did you request debt validation before the suit was filed? Yes

15. How long do you have to respond to the suit? (This should be in your paperwork). 30 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract?  The only thing is a note of Verification from the Attorney (Miele) of Unifund that all statements in the compliant are true and correct. And it is not signed. The verification reads:

 

I am the attorney for the plaintiff...., a party to this action. Such party is absent from the County of Los Angeles where attourneys have their offices, and I make this verification for and on behalf of that party for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true.  I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.  

 

Executed under the laws of the State of California at Los Angeles, CA on May 15, 2013.  

 

Then is says signature (but it's not signed) and his name.

 

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I know the next step is to file a sworn denial. A very similar case was posted and the question came up as to whether a general denial would be enough? Does anyone have insight to this?

 

...29 days and coutning to file my denial (and do it right). Thanks in advance for your insights!

 

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They are hoping you do a general denial so they can get a default. ;)

 

If a complaint is verified the answer must be verified. 

See Code of Civil Procedure § 446.   Most JDB's file an unverified complaint, but the attorney may choose to do a verified one.  Usually the verified ones are for unlimited cases over 25k.

 

A verified answer must admit or deny each and every paragraph of the complaint, and must also contain a verification signed by the defendant or defendants stating that they have read the answer and everything contained therein is true and correct to the best of their knowledge. The verification must be signed under penalty of perjury. Note that failure to file a verified answer when one is required will subject the answer to a motion to strike on the grounds that it is not verified.

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Thank you shellieh98! That is exactly the information I needed.

 

The summons is a little hard to follow.. It is clear to me that the first complaint starts at #8 on page 2 and the second complaint starts at #14 on page 3. I'm not sure if I need to do anything in my answer about #1-7 on the first page and the top of the of the second? Perhaps you can take a look at the attachement?

 

Also, I was reading about Demurrer (which can be used in CA). Is this something I could/should consider doing instead of an answer? They are verified the same way, right?

 

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I can't help you with a Demurrer, we don't have them in my state.  There are alot of cali people that can help you though.  I think you have to answer each number on the complaint. 

You can get a head start though and send off a request for a Bill of Particulars to them.  You can do that before you even answer.  They are suing you on breach of contract and account stated.  They might object to it, and or try to get away with sending you one or 2 statements, so you need to be familiar on what is in a BOP so you can get the whole thing. :-)

 

Other california peeps will be along.  In the mean time go to the pinned thread and read ASTMedic's thread on how I beat midland, and also look up homelessincalifornia's thread, he has a whole lot of motions that may come in handy later.

 

Oh and you should keep all your questions in one thread so others can follow the whole thing, and not have to search and jump around.  :)

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Good to know!

 

I just posted: To Answer or Demurrer? I wasn't sure if I sould keep them separate or not...

 

Thank you for the advice, I really appreciate it! I will look up ASTMedic and homelessincalifornia.

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So I sent my Demand for BOP and they answered with the attached signed agreement and a year's worht of statements. Will this change my approach? I havent filed my answer with the court yet.. I have two days.

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how funny, I live in grand junction.  take that down and redact your personal info off it asap. you have your ss number on it, as well as name.

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I would go ahead and file my answer, although that is not a proper bop. They need an accounting for the entire account beginning to end. But you need to file your answer, then we will work on next steps. @Seadragon and @calawyer, @hotwheels are all from your state who will jump in, I don't know about demurrers, so don't know if that is an option.

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Hi everyone!

 

I just realized that I have to take this to the courthouse tomorrow morning not Thurs (I'm embarrassed to say I counted wrong). So I'm hoping for any last minute advice or corrections to my answer below.

 

It's a bit lengthy since I wanted you to see the allegations I'm answering to. Hope you can bear with me!

 

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DEFENDANT’S VERIFIED ANSWER TO VERIFIED COMPLAINT AND AFFIRMATIVE DEFENSES

GENERAL ALLEGATIONS

1) Plaintiff is a limited liability company.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph one (1) of the Complaint, and therefor must respectfully deny.

2) Each named defendant is a natural person.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph two (2) of the Complaint, and therefor must respectfully deny.

3) The true names and capacities of defendants sued as DOES 1 to 4 are unknown to plaintiff. Each fictitious named defendant is in someway responsible for the occurrences alleged here and proximately caused plaintiffs damages.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph three (3) of the Complaint, and therefor must respectfully deny.

4) Each named and DOE defendant was acting in the agent or employee of the other defendants.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph four (4) of the Complaint, and therefor must respectfully deny.

5) This is a proper court under C.P.P sections 395a & 395b because a defendant resides in this district. This action is not subject to C.C. 1801 et seq.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph five (5) of the Complaint, and therefor must respectfully deny. (or should it be assumed I looked that up?)

 

6) Before filing this lawsuit, plaintiff purchased all rights, title and interest in the obligation upon which this suit is brought and is the sole owner of the account.

Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation in paragraph six (6) of the Complaint, and therefor must respectfully deny.

7) The above statements apply to the following causes of action.

Defendant incorporates by reference, answers and defense to Paragraphs 1 thru 6 of the complaint herein. (not sure on this one?)


CAUSE 1—BREACH OF CONTRACT

8) On or about 08-13-04, CITIBANK, NA and defendant(s) entered into an agreement for the issuance of a credit card which defendant(s) requested. A credit card now bearing account number XXXXXXXXXXXX7786 was issued to defendant(s). This credit card account granted defendant(s) credit privileges in purchasing goods and services and/or receiving cash advances.

Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation in paragraph eight (8) and therefore must respectfully deny. Defendant demands for strict proof thereof.

9) Defendant(s) accepted the written card holder agreement by using the credit card. Payments for the charges incurred were to be made in accordance with monthly billing statements sent to defendant(s).

Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation in paragraph nine (9) and therefore must respectfully deny. Defendant demands for strict proof thereof.

10) On or about 11-13-09, defendant(s) breached the card holder agreement by failing to make the minimum monthly payment due.

Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation in paragraph ten (10) and therefore must respectfully deny. Defendant demands for strict proof thereof.

11) Plaintiff and the original creditor have performed all of their obligations to defendant(s) except those obligations plaintiff or the original creditor were prevented or excused from performing.

Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation in paragraph eleven (11) and therefore must respectfully deny. Defendant demands for strict proof thereof.

12) Plaintiff suffered damages legally and proximately caused by breach of the card holder agreement by defendant(s) in that defendant(s) left due and owing the sum of $1898.33 with interest thereon. Although demand has been made, the amount prayed for is due, owing and unpaid.

Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation in paragraph twelve (12) and therefore must respectfully deny. Defendant demands for strict proof thereof.

13) Pursuant to agreement of statute, plaintiff seeks reasonable attorney fees according to proof.

Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation in paragraph thirteen (13) and therefore must respectfully deny. Defendant demands for strict proof thereof.

CAUSE 2—COMMON COUNTS

14) Defendant(s) and each of them became indebted to the original creditor, CITIBANK, NA within the last four years:
    a. on and open book account for money due and
    b. because an account was stated by and between the original creditor and the defendant(s) in which it was agreed that defendant(s) were indebted to the original creditor.

Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation in paragraph fourteen (14) and therefore must respectfully deny. Defendant demands for strict proof thereof.

15) Plaintiff also alleges that each defendant(s) because indebted to CITIBANK, NA, within the last four years:
    a. for money lent by the original creditor to defendant at defendant's request, and
    b. for money paid, laid out and expended to or for defendant at defendant's special instance and request for the defendant's use and benefit.

Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation in paragraph fifteen (15) and therefore must respectfully deny.

16) The sum of $1898.33 is due and unpaid despite plaintiff's demand, plus prejudgement interest according to proof.

Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation in paragraph sixteen (16) and therefore must respectfully deny.

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I'm not quite sure if my answers are satisfactory in allegations 1-7. I was taking it pretty literally, i.e. I cannot speak for "Each named defendant".. only for myself so therefor I deny the whole allegation. Am I understanding?  Also, wasn't sure how to answer 7.

 

And then in cause one and two I wasn't quite sure where to use "Plaintiff's statement is conclusory and offered without admissible evidence" or "Defendant demands for strict proof thereof".

 

Thanks for your help!

 

(I will also post Affirmative Defenses and Verification for a look as well..)

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AFFIRMATIVE DEFENSES

By and for her Affirmative Defenses, Defendant states:


 

First Affirmative Defense

1. Statute of limitations.

 


Second Affirmative Defense


2. Plaintiff in filing this Complaint has not produced a copy of the alleged agreement.

Third Affirmative Defense
3. Credit agreement has an arbitration agreement.

 

Fourth Affirmative Defense
4. Defendant never caused any harm to the plaintiff and owes plaintiff nothing.

Fifth Affirmative Defense
5. Defendant alleges that the damages, if any, alleged to have been suffered and/or will be suffered by the plaintiff are speculative in nature. 


 

Sixth Affirmative Defense


6. Defendant reserves the right to plead additional defenses (or cross-claims or counter claims) that may be identified during the Defendant's investigation and/or course of discovery.


 

Seventh Affirmative Defense


7. Defendant requests adequate time to proper Discovery.

 

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I'm still on the fence as to weather of not I should use these. From what I've been reading it might be better not to. That way I don't put myself in a place of needing to prove anything. But, should I decide to go that route, it would be good to know if any of these are useful.

 

Thanks again!

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PRAYER

 


WHEREFORE, Defendant prays that this Court find judgment for Defendant,
deny Plaintiffs’ request for relief, deny Plaintiffs’ request for damages, deny
Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief whatsoever. Defendant further prays that this Court hold that Defendant is the prevailing party, and dismiss Defendant with prejudice.

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VERIFICATION

I have read the foregoing VERIFIED ANSWER TO VERIFIED COMPLAINT AND AFFIRMATIVE DEFENSES and know its contents.

I am a party to this action. The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true.

Executed on             , 20    , at             (city), California.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.


                                                
(Print Name)                    (Signature)
                        Defendant, In Pro Per (or Sui Juris?)

 

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I've been reading into the difference between Pro Per and Sui Juris but I'm not sure which way I should go... Anyone have any thoughts?  :)

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Ok, so my answer has been filed...

 

NOW, do I start discovery? Or do I wait to hear from the court? Or something else?

I believe next you would request a verification of the debt and submit a Demand for Bill of Particulars.  I came to these forums late (after discovery) so I missed out on the early steps.

 

Plaintiff should be sending you discovery requests shortly (Request for Admissions, Request for Production, and Special Interrogatories).  Upon receipt of those, I answered each of those and at the same time prepared and served my discovery requests (Admissions, Production, Interrogatories).

 

I believe there are some examples of request for verification of the debt in the forums and there are several examples of Demand for Bill of Particulars.  I'd be looking for those right now.

 

For the steps subsequent to discovery, there are a lot of materials pertinent directly to California in my thread at http://www.creditinfocenter.com/community/topic/320243-going-to-trial-in-california/

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Status:

 

SENT my request for BOP

RECEIVED back a years worth of statements and what appears to be a signed credit card application.

I feel like this isn't quite sufficient. Do I send out a second request for BOP? Does anyone have a template doc that shows how one could respond?

 

Should I send FIRST REQUEST FOR PRODUCTION OF DOCUMENTS (regarding the "contract") or do I wait to see how they respond to my answer?

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Did the statements start from a balance of zero?  A proper BOP has to start from a zero balance, to current balance you are being sued upon so you can deduce how they arrived at the number they are suing for.  You could send them a letter called a meet and confer, tell them their BOP is deficient, and they have 5 additional days to correct it, or you will ask the court for a motion to compel/preclude the deficient items.

 

I would next send out a request for documents.  Cali members can jump in and say if there is a limit to your discovery items, or if you can ask for however many.  I would ask for contract governing the account, bill of sale of the account, purchasing agreement to the bill of sale, and there is a whole laundry list that can be found, look in astMedics thread, or homelessinca thread for these items.

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Okay, that's what I thought, and NO the statements are only from the date of alleged last payment (give or take).

 

I will begin researching the meet and confer letter and try to get that sent out this week. They have 5 days from the day we meet and confer to correct it or from day letter sent (+5 days for mail)? Does this need to be filed with the court or just sent CMRR for my records?

 

I will also draft my request for production of documents. This DOES need to be filed with the court, yes? Within a particular time frame?

 

I keep referring to @ASTMedic's and @Homelessinca's thread and they are very helpful! I will try keyword searching both of their threads for meet and confer and request for production of documents.

 

 

Thanks Shellie!

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your welcome. and no, send it to the plaintiff cmrrr, but don't file it with the court.  Same with discovery requests, send to the plaintiff cmrrr, don't file them with the court.  If it goes that you need to compel them, you then would file a motion to compel/preclude, and in that motion file the letter saying you tried to meet and confer, and plaintiff ignored.  Time frame is your discovery peroid.  look up seadragon, he has a great time line of a court case, and all you have to do, and the time limits to do it in.   If a trial is set, you have a specific timeline.  Your rules of civil procedure will tell you also.

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Hi eyoung27, I just won my case on August 12, 2013 against the same people you're dealing with. Since this site was such a help to me in my case, I would love to give you a few tips.

A few things to know about Kenosian & Miele - they are on point with their discovery, they will send you everything you request on time including a trial brief right before the trial date (this is in your advantage-trust me). If you're not living in LA where the firm is located, they will send a local lawyer to your trial and directly read your trial brief to the judge from his IPad. No joke!

These are my steps:
1. answer summons with general denial Form PLD-C-010 for California & POS-030 proof of service

2. discovery request Form DISC-015 for California & POS-30 proof of service - do this after you have a trial date set
you'll most likely get incomplete statements, bill of sale & assignment, and a declaration of lieu of live testimony (witness)

3. answer all discover request from plaintiff - deny all admissions, do not send them your credit report

4. once you get all of your requested discovery documents google map the address stated on the declaration/witness - most likely it will be BS address
subpoena the witness anyway Form SUBP001 & SUBP002  this is the most important part that won my case - use sheriff department this will take you some time approximately 3 weeks to get paper work back, If subpoena came back with invalid address, make sure you have the paper work stating so.

5. wait for trial brief and examine all docs closely with a highlighter and red pen
read this article and dissect every paragraph - this will help you with other defenses - (I'll have to post article later when I find it.)

6. draft motion to limine and file it with the court one week before trial date or asap- I didn't get a chance to do this because of time restrictions, this will either get you an early dismissal or they'll continue with the trial date

7. organize your binder and be prepared to state your defenses to all evidence.  Argue the fact that the declaration does not comply with CCP 98. If this judge didn't rule in your favor yet continue to state defenses.

 

Good luck & remember the burden of proof is on them!

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@yellowmate Thank you for the words of encouragement! I' really appreciate you reaching out to me and I know I'll have many questions for you. Hopefully you can help me with them as they come up (if you don't mind)! I'd love to read the article when you find it. Thank you!

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By the way, I checked the court's Register of Actions for my case and, after my answer, the last posted item was "Case reassigned from C-05 to Ronald Prager effective 08/13/2013". I'm not sure what this means or what C-05 is... I have not received anything in the mail from the courthouse or anything. They will inform me when there is a trial date set right?

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Is this a satisfactory Meet and Confer letter in response to their inadequate fulfillment of my BOP request?

 

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August 19, 2013


Law Offices of Kenosian & Miele, LLP
8581 Santa Monica Blvd., #17
Los Angeles, CA 90069


Re.:    Unifund CCR, LLC  vs. Name, San Diego County Superior Court, Case Number xxxxxxxxxxx, Meet and Confer.


Kenneth J. Miele, Attorney for Unifund CCR, LLC,

On July 20, 2013, Defendant sent to Plaintiff a demand for a Bill of Particulars pursuant to CCP 454. Per CCP 454, the recipient has 10 days to respond to such request. On August 3, 2013 Defendant received Plaintiff's response which was wholly inadequate as it did not comply with the requirements of CCP 454. No contract assigning the account at issue to the plaintiff has been produced. Nor has plaintiff produced all account statements justifying the amount claimed to be owed in the complaint.



 

Since a Bill of Particulars is appropriate for actions alleging Breach of Contract, Defendant hereby requests a further accounting of the alleged account to include all statements showing date of each transaction, the price or charge made for each transaction, all payments or credits that have been made to the account, a detailed accounting of how plaintiff calculated the alleged amount owed and all other items as originally requested in Defendant’s Bill of Particulars dated July 19, 2013. Plaintiff is granted 15 days from the date of this letter to fulfill this request.

Plaintiff’s response to defendant’s Bill of Particulars is inadequate. The Court should require plaintiff to supplement its response immediately and produce all statements pertaining to this account from inception showing all payments made and charges to the account at issue. In addition, plaintiff should produce and any agreement assigning the account at issue to the Plaintiff. In the alternative, the Court should enter an order pursuant to Code of Civil Procedure section 454 precluding the plaintiff from offering any such evidence at trial.

Respectfully,


Name
Defendant, Pro Per

 

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The last paragraph might be a little redundant... Should I combine with paragraph 2 or remove?

 

Thanks for your input!

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