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Summons served in California, whats next?


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Hello,

I've never done this before.

 

I am helping my mother and it is her debt. It is on an AMEX/CostCo Credit card. $25,000 balance. The account was opened 11/4/2003.

Just been served with a summons in California on July 9th 2013, LA County. Where do I go from here? How should I respond to the court and creditor? I believe this is the original creditor. The summons says Plaintiff: American Express, FSB. The attorney is Mihael & Assocc. There is no court date on the summons.

From what I read so far across the forums my choices are:

  1. General Denial (to court)
  2. Discovery Letter (to Atty/Original Creditor)
  3. Request JAMS arbitration.

More Questions:

  1. What should I do first?
  2. Do I need to do a power of attorney form if I’m doing all this for my mother? Or can I just do the foot work and have her sign documents?
  3. Can I go with JAMS if I choose arbitration? The 2009 contract states AAA and NAF, but no JAMS and it states  “…If a selection by us of either of these organizations is unacceptable to you, you shall have the right within 30 days after you receive notice of our election to select the other organization listed to serve as arbitration administrator…”.  But there is no other listing other than AAA/NAF. Should I find another contract so that JAMS is an option?
  4. Are AMEX contracts universal? This one was issued by Costco (a wholesale warehouse shopping center). Can I choose a contract that has JAMS? Acct opened 11/4/2001

 

If you suggest any action please send a link to sample form or link to official court form that I need to fill out.

 

Thanks. jasonblue

 

  1. Who is the named plaintiff in the suit?
    American Express FSB, a federal savings bank

    2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
    Micael & Assocc.

    3. How much are you being sued for?
    $25,006

    4. Who is the original creditor? (if not the Plaintiff)
    American Express FSB, same as Plantiff

    5. How do you know you are being sued? (You were served, right?)
    Summons was served at our home.

6. How were you served? (Mail, In person, Notice on door)
In Person. Papers were handed to my mother at home. Summons contained 2009 contract. And a statement from June 2013.

7. Was the service legal as required by your state?
I believe so

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
When we got the first collections letter from the attorney, we sent a letter stating that she has no job and is unable to pay any bills at this time.

9. What state and county do you live in?
California, Los Angeles County.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Jan - March 2013.

11. What is the SOL on the debt?
4 years, (I think that’s what California law states.)

12. What is the status of your case? Suit served? Motions filed?
Just receive the summons on July 9. We have 30 days. No actions have been made.

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

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
No.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
30 days from 7/9/2013
No questionnaire

Charges are:

  1. Breach of contract
  2. Common Counts:  Book Account, Account Stated
  3. Quantum Meruit-Reasonable Value

 

 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Summons, Law suit, Credit Card Contract, June 2013 statement, Civil case coversheet addendum


 

 

 

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Sources and Authority

  • “ ‘A book account may be deemed to furnish the foundation for a suit in assumpsit  only when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.’ ‘The term “account,” clearly requires the recording of sufficient information regarding the transaction involved in the suit, from which the debits and credits of the respective parties may be determined, so as to permit the striking of a balance to ascertain what sum, if any, is due to the claimant.’ ” (Robin v. Smith (1955) 132 Cal.App.2d 288, 291 [282 P.2d 135], internal citations omitted.)
  • “A book account is defined  as ‘a detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation.’ It is, of course, necessary for the book to show against whom the charges are made. It must also be made to appear in whose favor the charges run. This may be shown by the production of the book from the possession of the plaintiff and his identification of it as the book in which he kept the account between him and the debtor. An open book account may consist of a single entry reflecting the establishment of an account between the parties, and may contain charges alone if there are no credits to enter. Money loaned is the proper subject of an open book account. Of course a mere private memorandum does not constitute a book account.” (Joslin v. Gertz (1957) 155 Cal.App.2d 62, 65–66 [317 P.2d 155], internal citations omitted.)
  • “A book account may furnish the basis for an action on a common count ‘ “ when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.” ’ A book account is described as ‘open’ when the debtor has made some payment on the account, leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708 [220 Cal.Rptr. 250], internal citations and footnote omitted.)
  • “[T]he most important characteristic of a suit brought to recover a sum owing on a book account is that the amount owed is determined by computing all of the credits and debits entered in the book account.” (Interstate Group Administrators, Inc., supra, 174 Cal.App.3d at p. 708.)
  • “It is apparent that the mere entry of dates and payments of certain sums in the credit column of a ledger or cash book under the name of a particular individual, without further explanation regarding the transaction to which they apply, may not be deemed to constitute a ‘book account’ upon which an action in assumpsit may be founded.” (Tillson v. Peters (1940) 41 Cal.App.2d 671, 679 [107 P.2d 434].)
  • “The law does not prescribe any standard of bookkeeping practice which all must follow, regardless of the nature of the business of which the record is kept. We think it makes no difference whether the account is kept in one book or several so long as they are permanent records, and constitute a system of bookkeeping as distinguished from mere private memoranda.” (Egan v. Bishop (1935) 8 Cal.App.2d 119, 122 [47 P.2d 500].)
  • “ ‘The common count is a general pleading which seeks recovery of money without specifying the nature of the claim. Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense, including some which ordinarily require special pleading.’ However, even where the plaintiff has pleaded in the form of a common count, the defendant must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff.” (Title Ins. Co. v. State Bd. of Equalization (1992) 4 Cal.4th 715, 731 [14 Cal.Rptr.2d 822, 842 P.2d 121], internal citations and footnote omitted.)
  • “Although such an action is one at law, it is governed by principles of equity. It may be brought ‘wherever one person has received money which belongs to another, and which “in equity and good conscience,” or in other words, in justice and right, should be returned.The plaintiff’s right to recover is governed by principles of equity, although the action is one at law.’ ” (Mains v. City Title Ins. Co. (1949) 34 Cal.2d 580, 586 [212 P.2d 873], internal citations omitted.)
  • ince the basic premise for pleading a common count is that the person is thereby ‘waiving the tort and suing in assumpsit,’ any tort damages are out. Likewise excluded are damages for a breach of an express contract. The relief is something in the nature of a constructive trust and ‘one cannot be held to be a constructive trustee of something he had not acquired.’ One must have acquired some money which in equity and good conscience belongs to the plaintiff or the defendant must be under a contract obligation with nothing remaining to be performed except the payment of a sum certain in money.” (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14–15 [101 Cal.Rptr. 499], internal citations omitted.)
  • “ ‘As Witkin states in his text, “[a] common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract.” ’ A claim for money had and received can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract.” (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 [5 Cal.Rptr.3d 520], internal citations omitted.)
  • “In the common law action of general assumpsit, it is customary to plead an indebtedness using ‘common counts.’ In California, it has long been settled the allegation of claims using common counts is good against special or general demurrers. The only essential allegations of a common count are ‘(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment.’ ” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460 [61 Cal.Rptr.2d 707], internal citations omitted.)
  • “A common count is not a specific cause of action, rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory. When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action, and is based on the same facts, the common count is demurrable if the cause of action is demurrable.” (McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115], internal citations omitted.)

Secondary Sources

4 Witkin, California Procedure (4th ed. 1997) Pleading, § 522

1 California Forms of Pleading and Practice, Ch. 8, Accounts Stated and Open Accounts, §§ 8.20, 8.47 (Matthew Bender)

4 California Points and Authorities, Ch. 43, Common Counts and Bills of Particulars, § 43.28 (Matthew Bender)

1 Matthew Bender Practice Guide: California Contract Litigation, Ch. 9, Seeking or Opposing Quantum Meruit or Quantum Valebant Recovery in Contract Actions, 9.02, 9.15, 9.32

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372. Common Count: Open Book Account

 

 

 

 

[Name of plaintiff] claims that [name of defendant] owes [him/her/it] money on an open book account. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of plaintiff] and [name of defendant] had (a) financial transaction(s);

2. That [name of plaintiff] kept an account of the debits and credits involved in the transaction(s);

3. That [name of defendant] owes [name of plaintiff] money on the account; and

4. The amount of money that [name of defendant] owes [name of plaintiff].

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Example of BOP

The BOP is sent to the law office with a certificate of service.

Always send certified mail return receipt requested.

 

To Plaintiff American Express FSB and its attorneys of record Michel & Associates

 

DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure 454, to furnish this Defendant, MY NAME, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for Breach of Contract, Book Account, Quantum Meruit-Reasonable Value of plaintiffs complaint is based to include: an signed agreement and / or contract of said account, date of each transaction on the said account, the price or charge made for each item, all payments or credits that have been made to the account, a detailed account of how plaintiff calculated the amount owed showing specific charges for the services claimed, and any agreement assigning the account at issue to the plaintiff.

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File an answer, then send a BOP

 

Then if the language is in there, move for JAMS - keep in mind that they may actually go for it...

 

Thank you all for your help. So I'm going to send the standard BOP to the plaintiffs attorney Certified Mail with signature. And File an answer to the court regarding the summons. I'm planning on fileing a General Denial. Do I Just use the form PLD-050 from the California Courts website? I notice the form is for 'Confirmed' debt under $25,000.  The debt on the summons is over $25k. BUT it is 'Unconfirmed'. So Im assuming The PLD-050 form is ok? Does the form need to be typed? or is hand written ok to fill in the form?

 

Here is the form. Please let me know if this is the right one.

http://www.courts.ca.gov/documents/pld050.pdf

 

Thank you ALL again!! I have been reading the forums and using the search to help me gain more knowledge as I'm not to familiar with the language associated with law. So far I have found most of what I wanted.

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Read ASTMedics Midland thread, Homeless in California thread also. She may be able to do the BOP/then demurrer/then answer strategy made by Jespercorp. These should get you or feet under you. Read the Rules of civil procedure for time limits.

 

she can send via USPS CMRRR the BOP and then file a demurrer on the 29th day from when they served the summons this extends the time to answer until after the demurrer is ruled on. also look into fee waiver. this will be an unlimited case so the procedures are slightly different from the other cases, ie no limit on discovery(works both ways watch out), have to have real witnesses at trial no declarations, usually better judges, and so on. Get your mother on here and learning also. ask any questions here you want none are stupid questions. You might want to think really hard about getting an attorney if you can.

 

Here is a long form general denial:Long form General Denial.doc

 

here is a BOP:Seadragon copy of Calawyers famous Bill of Particulars.doc

 

Here is a demurrer:

 

Redacted Demurrer.doc

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If the complaint attaches a contract and incorporates it by reference, the demurrer would not be appropriate.

Yes. The complaint does refer to the Credit card contract as Exhibit A. So demurrer would probably not be an option. I'm still confused as to how I should respond to the court. I keep reading about a General Denial. The original plan was to just let it go to default judgement. But why do that, when I could maybe help postpone things or explore other possible options. It's not likely that we can win the case, so there are precautions in place if they win. Just want to see what others would attempt if they were in my situation.

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You can use the general denial if the complaint is not verified and, under certain circumstances listed on the form itself, even if it is verified. A complaint is verified when the plaintiff swears that the facts set forth in the complaint are true. The advantage of using this form (if you can) is that you don't need to go paragraph-by-paragraph through the complaint denying or admitting each one.

 

 

Go to the last page of the attached link and you will see a typical verification form for California complaints. As in the example, most (but not all) verified complaints say so in the caption itself: http://cluebytwelve.net/monkeys-lawsuit/complaint.pdf

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I'm going to file a General Denial (Form  PLD-050) in response to the summons. And I had a few questions.

Does continuing foward with the General Denail waive my right to arbitration? at what point will I NOT be able to go into arbitration?

 

We are not looking to walk away from this debt. But at the same time we know this isn't all her debt. After not paying a few months on this account we were sent a letter by the amex's law firm. We responded with a letter stating hardship and we were unable to pay. Then a month later we were served with a summons. We never answered calls during this time and still continue not to answer the phone.

When will they be willing to negotiate a lower balance? how can I go about negotiating?

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I'm going to file a General Denial (Form  PLD-050) in response to the summons. And I had a few questions.

Does continuing foward with the General Denail waive my right to arbitration? at what point will I NOT be able to go into arbitration?

 

Filing a General Denial does not waive your right to arbitration. It prevents them from getting a default judgment. You will not be able to arbitrate unless you file a motion to arbitrate. If you don't assert that right, then you will lose it.

 

We are not looking to walk away from this debt. But at the same time we know this isn't all her debt. After not paying a few months on this account we were sent a letter by the amex's law firm. We responded with a letter stating hardship and we were unable to pay. Then a month later we were served with a summons. We never answered calls during this time and still continue not to answer the phone. To be honest, they don't really care about hardship. That's why you were sued. Plus a judgment  is good for several years (sometimes up to 20 years). They are more than happy to wait and if you're doing better financially, they'll hit your bank account, wages, etc.

 

When will they be willing to negotiate a lower balance? how can I go about negotiating?

At this point, probably not. Call their lawyers and propose a settlement... all they can do is say "no" and press forward with the case.

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"When will they be willing to negotiate a lower balance? how can I go about negotiating?"

 

 

The answer to the "When" question is typically at a time when you have created a need for them to accept a lower amount.  If you look at the facts you have stated they are as follow:

 

You were paying or keeping the accout paid up until Jan-March of this year.  You have a big balance , which generally means a large monthlt payment.  The fact they have sued you so quickly maybe telling about your assets or ability to have a lien or garnishment.

 

You need to step into the shoes of your opponent and look at the situation from their perspective, this will lead you to when.  Most will settle for something rather than nothing, once it is clear they will get nothing or there is nothing to get.

 

I don't think you have shown the otherside that you will be difficult to collect from or they are wasting their time and money, just yet.

 

File the answer and buy some time is always the first step.  Force time and additional effort for them to get where they are going.  You may then be able to get some type of settlement.

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  • 1 month later...

I received a response to my moms BOP.

Things I noticed:

-THERE IS NO SIGNED CONTRACT

-They responded within 10 days.

-Exhibit A: Cardmember Agreement

- Exhibit B: It only shows ONLY 2 years of statements July 2011 thru July 2013

-There is a statement that included updates to the cc contract which included JAMS

-Exhibit C: Shows only 32 checks that were used to make payments Sep 06’ thru Apr 09’.

The checks have my mothers signature.

 

 

Then a few days later I receive a “Notice of Case Conference” with date set for December.

 

Then a week later I receive a envelope with 4 documents.

-1ST document is: Form DISC-001 , FORM INTERROGATORIES-GENERAL

            (It contains questions they want my mother to answer)

-2ND document is “PLAINTIFF’S SPECIAL INTERROGATORIES – SET NUMBER ONE (1)”

            -SPECIAL INTEROGATORY NO.1 ,  Identify all documents that support your contention that you are not responsible, in any manner, in whole or in part, for the damages alleged in the complaint on file herein.

 

            -SPECIAL INTEROGATORY NO.2,  Please state every fact upon which you base your general denial to the complaint.

 

            -SPECIAL INTERAGATORY NO. 3, Please indentify all documents that support your general denial to the complaint.

 

            -SPECIAL INTERAGATORY NO. 4, Please state every fact upon which you base each of your affirmative defenses to the complaint.

 

            -SPECIAL INTERAGATORY NO. 5,  Please identify all documents that support your affirmative defenses to the complaint.

 

            -SPECIAL INTERAGATORY NO. 6,  Please state why you contend that you do not owe Plaintiff the principal amount of $26,455.23 as set forth in Plaintiff’s complaint.

 

            -SPECIAL INTERAGATORY NO. 7, Please state what amout, if any, that you owe Plaintiff American Express Bank FSB with regard to account number xxxxx-xxxx.

 

-3RD document is: PLAINTIFF’S REQUESTS FOR PRODUTION OF DOCUMENTS – SET NUMBER ONE (1)

            -REQUEST FOR PRODUCTION NUMBER 1: All documents identified by you in response to Form Interrogatories, Set One, served concurrently with this request.

 

            -REQUEST FOR PRODUCTION NUMBER 2: All documents identified by you in response to Special Interrogatories, Set One, served concurrently with this request.

 

            -REQUEST FOR PRODUCTION NUMBER 3: All correspondence between you and plantiff relating to the matter upon which this suit is based.

 

            - REQUEST FOR PRODUCTION NUMBER 4: Any and all documents that support your contention that you do not owe the amount claimed in the complaint on file in this action.

 

-4TH document is: PLAINTIFF’S REQUEST FOR ADMISSIONS (SET ONE)

            -REQUEST FOR ADDMISSION NUMBER 1:  Admit that you entered into a written contract with Plaintiff wherein you were issued an American Express Cash Rebate Credit Card for the purposes of obtaining goods and/or services and/or cash advances from businesses that honor the American Express Cash Rebate Card.

 

            -REQUEST FOR ADDMISSION NUMBER 2: Admit that within the last 4 years, you utilized your American Express Cash Rebate Card for the purposes of obtaining goods and /or services and/or cash advances from businesses that honor the American Express Cash Rebate Credit Card.

 

            -REQUEST FOR ADDMISSION NUMBER 3:  Admit that within the last 4 years, you failed to make the minimum payments on your American express Credit Card.

 

            --REQUEST FOR ADDMISSION NUMBER 4: Admit that you received your American Express statement on a monthly basis at the address of. 12894 Some Street, The city, CA 55658.

 

            -REQUEST FOR ADDMISSION NUMBER  5: Admit that the attached and marked Exhibit A is a true copy of your credit card statement that was mailed to you at 12894 Some Street, The city, CA 55658.

 

            -REQUEST FOR ADDMISSION NUMBER  6: Admit that when you received the AMEX credit card you agreed to the Terms & Conditions set forth in the Agreement between Cash Rebate Cardmember and AMEX bank attached hereto as Exhibit B.

 

            - REQUEST FOR ADDMISSION NUMBER  7: Admit that you owe Plantiff the principal amout of $26,455.23 as result of the usage of the American Express Credit Card account ending in xxxx.

 

Are we in the Discovery Process?

Everyone’s situation is different. What would you guys do if you were in this situation?

How and what forms should one use to respond?

Is there a format to follow if one was to respond?

NO SIGNED CONTRACT. This case should be dead. And I’m Thinking of asking the Judge to dismiss.

 

Thanks to all.

 

 

 

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  • 2 weeks later...

BUMP

 

I never got help for the post above. oh well,,,I found answers to Prodution of docs, and Request for Admissions by doing a search. However I need a little help with answering questions on my Special Interrogatories.

 

I was reading that its not a great idea to answer with affirmative defences unless you really know your stuff.

 

So far they have not provided a complete BOP. no signed contract, only 2yrs of statements, and some checks that were used to pay on the account.

 

How should I answer these questions?

“PLAINTIFF’S SPECIAL INTERROGATORIES – SET NUMBER ONE (1)”

            -SPECIAL INTEROGATORY NO.1 ,  Identify all documents that support your contention that you are not responsible, in any manner, in whole or in part, for the damages alleged in the complaint on file herein.

 

            -SPECIAL INTEROGATORY NO.2,  Please state every fact upon which you base your general denial to the complaint.

 

            -SPECIAL INTERAGATORY NO. 3, Please indentify all documents that support your general denial to the complaint.

 

            -SPECIAL INTERAGATORY NO. 4, Please state every fact upon which you base each of your affirmative defenses to the complaint.

 

            -SPECIAL INTERAGATORY NO. 5,  Please identify all documents that support your affirmative defenses to the complaint.

 

            -SPECIAL INTERAGATORY NO. 6,  Please state why you contend that you do not owe Plaintiff the principal amount of $26,455.23 as set forth in Plaintiff’s complaint.

 

            -SPECIAL INTERAGATORY NO. 7, Please state what amout, if any, that you owe Plaintiff American Express Bank FSB with regard to account number xxxxx-xxxx.

 

Opinions and ideas welcome. Thanks again.

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  • 1 month later...

So far I've gotten an insufficient response to my BOP.

Things I noticed:

-THERE IS NO SIGNED CONTRACT, just the basic copy of contract.

-They responded within 10 days.

-Exhibit A: Cardmember Agreement

- Exhibit B: It only shows ONLY 2 years of statements July 2011 thru July 2013

-There is a statement that included updates to the cc contract which included JAMS

-Exhibit C: Shows only 32 checks that were used to make payments Sep 06’ thru Apr 09’.

The checks have my mothers signature.

 

I'm going to send another letter to have them respond with a propper bop and give them another 10days.. I think its called a 'meet and confer letter??

 

I'm still a bit lost here. And kind of scared for my mother since this lawsuit is against her. The attorneys sent me a notice for Case Management Conference and that is on Dec. 4th. The thing is, she is not that great at english and doesn't really know what is happening here.

 

Should I do my own Discovery? RFA RFPD ROGS?

Can I go to Case Management Conference and help her there?

Should I go and opt for Arbitration now? and knowing its a less formal process, can i represent her there?

I'm thinking of calling and see what kind of deal we may be able to settle on.

 

Kind of an awkward situation overall. What would you guys do?

 

Thanks for all the help so far.

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I would consider that a proper response in as far as a BOP goes, not to mention the fact that it was actually timely, which is unusual. I would move on to discovery, request for production of documents.

 

I don't know why the lawyer is sending you information if it's your Mother's case. I doubt that you will be able to help her (or speak for her) at the CMC, but the court house is a public building, and you are allowed to watch from the gallery.

 

She can get an interpreter. She may even be able to use this to her advantage (as it may be harder on the lawyers).

 

 

BTW: I hope all the discovery in post #14 was answered.

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I would consider that a proper response in as far as a BOP goes, not to mention the fact that it was actually timely, which is unusual. I would move on to discovery, request for production of documents.

 

I don't know why the lawyer is sending you information if it's your Mother's case. I doubt that you will be able to help her (or speak for her) at the CMC, but the court house is a public building, and you are allowed to watch from the gallery.

 

She can get an interpreter. She may even be able to use this to her advantage (as it may be harder on the lawyers).

 

 

BTW: I hope all the discovery in post #14 was answered.

 I figured it was an ok response for a BOP. After all, we are dealing with the OC. The lawfirm is representing AMEX. AMEX is the plaintiff. They are actually sending her the info, and I'm helping her respond.

 

Charges include 'Account Stated' so from what I've read on this fourm so far, they really don't have to show ALL statements to win that charge.

 

She did answer the Discovery in post #14. This is going to be tough.

 

Can someone point to some samples to start my own discovery? I'm going to need Ideas on what / how to ask.

 

Thanks to all for the help so far. I'm going to do what I can even though this may be a tough one to win.

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You may be able to act as your mothers agent if she gives you the POA to do so. It is not to be taken lightly, and you probably shouldn't do it if you don't have the time or willingness to do it for her, she would be better off hiring a lawyer. Here is the form with instructions, you would only need her to check the one that allows you to litigate for her. I did this for my father and was able to help him successfully sue someone for property they had taken from him.

http://www.thedocdiva.com/CALIFORNIA_GENERAL_DURABLE_POWER_OF_ATTORNEY.pdf

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A power of attorney will not permit you to speak on your mother's behalf in court.

 

There is a template for a RFP in post 23 of this thread.  You might want to add the following request:

 

http://www.creditinfocenter.com/community/topic/311930-another-cach-lawsuit-in-ca-need-a-lot-of-help/page-2

 

 

3.  ALL DOCUMENTS constituting monthly statements of the account referred to in the complaint from inception of the account to alleged default.

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@calawyer

Can you help me to understand? This is the exact verbiage used in colorado, where I was allowed to appear for my father, he didn't even have to be there. ( it is hard for him to get around, and he has medical issues). Is it different, or am I missing something? I don't want to steer anyone wrong. Thanks.

Claims and litigation. To commence, prosecute, discontinue, or defend all actions or other legal proceedings touching my property, real or personal, or any part thereof, or touching any matter in which I or my property, real or personal, may be in any way concerned. To defend, settle, adjust, make allowances, compound, submit to arbitration, and compromise all accounts, reckonings, claims, and demands whatsoever that now are, or hereafter shall be, pending between me and any person, firm, corporation, or other legal entity, in such manner and in all respects as my Agent shall deem proper.

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This is one of the many instances where laws can vary from State to state.  I don't know what the law is in Colorado but in California when a non-lawyer represents someone other than himself or herself in Court, that is the unauthorized practice of law (with a few exceptions not relevant here).

 

A power of attorney can authorize someone to stand in the shoes of the principal with respect to litigation and make the decision to initiate litigation or compromise a claim. But in California, one must be a lawyer to represent another in Court.

 

Here is an article from the Sacramento Law library with further information:  http://www.saclaw.lib.ca.us/pages/powerattorney.aspx

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