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Requests for Admissions HELP!!!


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I've been scouring this website for the help I need for my case and it has help a lot. Thank you!!

 

I'm being sued by Cavalry SPV (JDB). I answered and included an affirmative defense. 

DV-they sent me a generic BOS, copies of 12 months of statements before the acct was sold, copy of generic agreement.  

I live in California.

 

Now, I've received (by regular mail) a REQUESTS FOR ADMISSION OF TRUTH OF FACTS & GENUINENESS OF DOCUMENTS. And it looks like I have 30 days from the day it was mailed to respond. Unfortunately, that gives me a week (8/2). I know, I know it's a little late, I've been on vacation and was in a car accident.

 

I'm hoping you can give me some help on my replies to the following:

 

1 YOU had a credit card acct w/ plaintiff's assignor XXX.

2. YOU received the billing statements w/ transaction information matching the transaction summary from plaintiff's assignor. 

3. YOU did not object or dispute to any of the billing statements or any item in any transaction summary at or about the time YOU received each billing statement from plaintiff's assignor. 

4. YOU admit that the transaction summary contained in Exhibit A provides a proper accounting of the account. 

5. You admit you voluntarily entered into an agreement w/ plaintiff's assignor and were not induced into entering into the agreement. 

6. You admit that the affirmative defenses in your answer filed with the court are w/o merit. DENY.

7. You owe $XXX on the obligation at issue in this action at the time the complaint was filed. 

YOU admit that your account (identified in Exhibit A, attached) is now owned by Plaintiff. DENY. The Plaintiff has not provided assignment of the debt nor a bill of sal or purchase receipt to show a debt is owed to Plaintiff by the Defendant. (basically what I wrote in the affirmative defense)

 

Any help with the wording of my answers would greatly be appreciated! 

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You don't need to go in to very much detail in your answer just admit or deny and tell the plaintiff why you cant answer his question. You don't plead your case in answering discovery. You give them nothing because they will give you nothing they just hope you will admit to something to help prove their case for them.

 

The Defendant makes the following response to the Plaintiffs Requests for Admissions:

 

1 YOU had a credit card acct w/ plaintiff's assignor XXX.

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

2. YOU received the billing statements w/ transaction information matching the transaction summary from plaintiff's assignor.

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 3. YOU did not object or dispute to any of the billing statements or any item in any transaction summary at or about the time YOU received each billing statement from plaintiff's assignor. 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

4. YOU admit that the transaction summary contained in Exhibit A provides a proper accounting of the account. 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

5. You admit you voluntarily entered into an agreement w/ plaintiff's assignor and were not induced into entering into the agreement. 

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

6. You admit that the affirmative defenses in your answer filed with the court are w/o merit.

 Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

7. You owe $XXX on the obligation at issue in this action at the time the complaint was filed.

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

8.YOU admit that your account (identified in Exhibit A, attached) is now owned by Plaintiff.

Response: The information known or readily obtainable by the Defendant is insufficient to enable a response to the request. Defendant denies the request until such time as sufficient information is known to make a different response.

 

 

www.courts.ca.gov/documents/pos030.pdf

 

CERTIFICATE OF MAILING

I hereby certify that on this day of July, 2013, I placed a true and correct copy of the foregoing ANSWER TO PLAINTIFF’S ADMISSIONS in the United States Mail, postage prepaid,certified return receipt addressed to counsel of record at counsels address here:

 

MySignature

XXXXX XXXXXX

 

 

 

 

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Thanks everyone !!
I have been searching all over the place for the correct form to respond to the Requests for Admission and I can't seem to find it. 

Does anyone have a link handy?

I'm also going to need the form to answer their Interrogatories. 

 

This is where I've been looking, but I'm not really sure what forms I need

http://www.sdcourt.ca.gov/portal/page?_pageid=55,1058589,55_1559537&_dad=portal&_schema=PORTAL#civilforms

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rookie what counts are they suing you on? You are going to want to send your own rogs, admits, request for docs, and if it is on breach of contract, you will want to send a BOP.  Can you answer the questions in the thread pinned at the top about before you post?  That would help all the cali members help you. :)

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I'd send them a BOP if you haven't done so yet - this gives them 10 days to provide you a complete accounting over the life of the account. If they can't, then you can move to have everything precluded - which torpedoes their case.

 

It also allows you to change #4 to read:

 

Deny - Defendant had made a request under CCP454 and has yet to receive a response from the Plaintiff.

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Thanks and sorry, I thought I included the pertinent info. 

Here are my answered to the pinned questions

1. Who is the named plaintiff in the suit? Cavalry SPV I, LLC
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Bishop, White, Marshall & Weibel
3. How much are you being sued for? >$13, 000

4. Who is the original creditor? (if not the Plaintiff) B of A FIA Card Svcs.
5. How do you know you are being sued? (You were served, right?) Yes
6. How were you served? (Mail, In person, Notice on door) Handed summons to my husband at our house
7. Was the service legal as required by your state? Yes
Process Service Requirements by State - Summons Complaint
8. What was your correspondence (if any) with the people suing you before you think you were being sued?

2/7-Bishop, White, et al sent me a letter stating Plaintiff had retained their office to collect a debt. (1st correspondence).

2/12-Bishop, White, et al sent/mailed me a letter stating they were attempting to collect a debt. They did not give me a date by which I had to pay. They just requested that I contact their office.

2/26-I requested validation of debt sent via certified mail.

3/7- They replied to my request for DV with

  1. Generic BOS
  2. Copy of general credit card agreement which had no reference to me or my account
  3. Copies of billing statements from Nov. 2009 to Oct 2010

9. What state and county do you live in? San Diego, CA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) It's not outside of SOL. One of the bills shows a payment from a "Bill Payer Service" in 8/2010.
11. What is the SOL on the debt? To find out: 4 years
Statute of Limitations on Debts
12. What is the status of your case? Suit served?  We have a Civil Case Mgmt Conf on 8/30/13
I am getting ready to mail a Demand for Bill of Particulars. 

I am also attempting to respond to their 1) REQUEST FOR ADMISSIONS OF TRUTH OF FACT AND GENUINENESS OF DOCUMENT, SET ONE (CCP 2033.010, et seq) & 2) Form Interrogatories-Economic Litigation
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. Yes
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.

CC-1 Plaintiff alleges Defendant became indebted to the Plaintiff within the last four years

    1. on an open book account for money due. 

    2. 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. within the last four years for money paid, laid out, and expended to or for defendant at defendant's special instance and request.

CC-2 $13,000, which is the reasonable value, is due and unpaid despite plaintiff's demand, plus prejudgement interest at the rate of 10.99 percent per year. 

  • NOTE: I DENIED All in my Answer, plus included the following Affirmative Defenses:

   1. The Plaintiff has failed to state fact sufficient to state a cause of action against Defendant.

   2. The Plaintiff has not provided assignment of the debt nor a bill of sal or purchase receipt to show a debt is owed to Plaintiff by the Defendant. 

  3. The Plaintiff lacks standing to bring this action. 

  4. The Plaintiff must prove that the principle, interest, collection costs, attourney fees are all correct, agreed to in your contract, and lawfully charged. 

 

Did you receive an interrogatory (questionnaire) regarding the lawsuit? Yes and I'm researching how to answer those questions correctly.
Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
Only the summons: SUM-100 & the Complaint: PLD-C-001

 

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Good point 1stStep!

Yes, they did allege Defendant became indebted to Plaintiff within the last four years 

    for money paid, laid out, and expended to or for defendant at defendant's special instance and request.

Why would they balk at the BOP?

Also, If it is indeed an open book account as they state then the SOL starts when the OC closed the account, not when the last payment was received. 

http://www.creditinfocenter.com/community/topic/226811-can-someone-define-an-open-book-account/

If that's the case then they may be out of luck. I guess I'll have to pull my credit report to see when the account was closed.

Any other thoughts or recommendations?

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Open book account is included for a BOP. These are the types of accounts they are for, contracts or quasi contracts, but not account stated. Send them the demand. :)

(1) "On account": This basically means any action in contract or quasi-contract consisting of one or more items and pleaded in general terms. The most frequent case is where the complaint contains one or more of the common counts:

· Open book accounts;

· For labor and materials furnished under a contract;

· For monies loaned;

· For "money had and received."

(2) Not available where complaint for account stated: But a bill of particulars is not appropriate in an action on an account stated, because an account stated is deemed to merge the various items on which the earlier accounts were based: i.e., there is nothing left to itemize. [Ahlbin v. Crescent Commercial Corp. (1950) 100 Cal.App.2d 646, 648, 224 P.2d 131, 133--plaintiff may ignore defendant's demand]

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Yes, they sent me a generic BOS in response to my DV. It was from the OC to Cavalry. It does not include my name or account number. 

It is signed by the VP at FIA Card Services and the CFO at Cavalry. It appears it was executed in Delaware, if that matters.

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Oh you asked why they would balk at a BOP? Because it makes them have to five you an entire accounting of the account in 10 days. Jdb's don't purchase all that, they buy their evidence one page at a time from th oc. They usually just get a couple of statements, etc. to serve as a prima facile case so they can win a default judgement. If you are one of their 5% that actually fight, then they may or may not go back to the oc for more, but each page costs them. Their main focus in this business is to spend as little as possible to get their defaults.

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I believe this account was opened in 2007, so that's quite a bit for them to purchase. 

Now, if after they receive my demand for BOP they fail to provide all of the statements from inception to default can they come back at a later time and provide those statements? Would those statements be inadmissible if we went to trial?

 

Also, what happens if they get a signed statement from the CFO of BofA stating he believes the response to the request for BOP to be correct. What do I do if I receive that?

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This info from the above link regarding Open Book Accounts http://www.creditinf...n-book-account/

seems like good news for me, but Shellieh98 disagrees. 

 

IF we were able to apply: "However, if the obligation sued upon constitutes an open book account, the statute of limitations begins to run from the date of the last entry on the account. Code of Civil Procedure § 337(2). But an open book account becomes closed, and the statute of limitations begins to run, once the account creditor ceases to extend credit on the account and there is no further activity on the account other than payment being made. RNC, Inc. v. Tsegeletos (1991) 231 Cal.App.3d 967, 972. 

Am I missing something? Ugggh! I should have gone to law school!!

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In your summons you state the charges against you are open book account, account stated. Both cases the sol runs from when the default occurred. When was your last payment? In the above thread you said last payment was from a "bill pay or service" in 08/11. What is the bill payor service?

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IF we were able to apply: "However, if the obligation sued upon constitutes an open book account, the statute of limitations begins to run from the date of the last entry on the account. Code of Civil Procedure § 337(2). But an open book account becomes closed, and the statute of limitations begins to run, once the account creditor ceases to extend credit on the account and there is no further activity on the account other than payment being made. RNC, Inc. v. Tsegeletos (1991) 231 Cal.App.3d 967, 972. [\quote]

In this case you quote, open book becomes closed when they close the account. If you were not in default,and the account was not paid off, why would they close it, unless you requested it?

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It was closed by the OC when the payments were being missed, but we were trying to get them money when we could and they would accept the payments.

 I'm not sure what the "bill pay service" is. It's on the copy of the bill they sent me. 

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Ok I get it. I was under the impression you did not make payments after the account was defaulted on. So yes for the open book you would be correct, but if they are also suing on account stated, then they would fight for the latter sol if that makes sense. And you should keep your entire case in this thread so others chiming in will not have to jump around, you will lose a lot of valuable insight if you have multiple threads, not everyone will jump around, but they will go back and read your entire thread.

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I appreciate everyone's help so much! 

I could use any input or thoughts on my answers to their interrogatories. Please let me know if my answers are appropriate or if there is a better way to answer them.

Thanks again for your help!!!

 

1. If you contend that any Person involved in the INCIDENT violated any statute, ordinance, or regulation and that the violation was a cause of the Incident, identify each Person and the stature, ordinance, or regulation.

ANSWER  -Defendant denies recollection of the INCIDENT and therefore this question is improper.

 

2. State in detail the facts upon which you base your contention that you are not responsible, in whole or in part, for plaintiff's damages.

ANSWER -To the best of the Defendant's memory, and without any proof provided, Defendant denies responsibility for plaintiff’s damages.

 

3. State the name, address and phone number of each person, other than the person asking this interrogatory, who is responsible, in whole or in part for damages claimed in this action.

ANSWER -Defendant denies recollection of this card and therefore this question is improper.

 

4. Identify all documents that are part of the agreement and for each state the name, address and phone number of the person who has each document. 

ANSWER - Objection. Defendant denies knowledge of the account and, therefore, would have no documentation.

 

5. State each part of the agreement not in writing the name, address, and phone number of each person agreeing to that provision, and the date that part of the agreement was made. 

ANSWER - Objection. Defendant denies knowledge of the account and, therefore, would have no documentation.

 

6. Identify each agreement excused and state why performance was excused.

ANSWER- Objection: Defendant had no agreement with Plaintiff; therefore Defendant has no documentation.

 

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