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Just Served...need assistance, please!!!


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Sorry, I left this out when I posted earlier today.

 

I was planning to send a Bill of Particulars tomorrow when the court opened, but do I have to answer first? I;m not sure if I should do a general denial of even what I'm denying, since there is no account number, the dates don't match what I recall, etc...

 

This is my case:

 

1. Who is the named plaintiff in the suit?  

    - PERSOLVE, LLC, dba account resolution associates

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

    - I don't see a law firm's name, just an in-house attorney it looks like, alex and ryan
3. How much are you being sued for?

    - $5,100 +

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

    - BEST BUY

5. How do you know you are being sued? (You were served, right?)

    - Summon served

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

    - In 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?

    - None that I recall

9. What state and county do you live in?

    - California, Fresno

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

    - According to their claim, 8/27/2010, according to my credit report, Oct 2010

11. What is the SOL on the debt?

    - 4 years in California

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name)

    - Complaint filed: 08/02/13


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.

    - 30 days, and counting down.....

16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or on an open book account, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.

    - Open book account, money lent, account stated

 17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

    - Yes

18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

    -No

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

    -There is no evidence with the summons or complaint.

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Aaauugghh! I tried to edit and it deleted my original post...so sorry, I'm not used to forums...

 

OK, I  started lurking last week when I got wind that a process server was hunting for me, and I was served the papers today for a lawsuit with Persolve, from a Best Buy card I defaulted on after the economy went south. I'm ready to fight, because all of this junk debt buying really irks me, especially when I struggle to pay for food and electricity at the moment, once my rent is paid. I read online that this company is full of scumbags, so I need all the help I can get.

 

I understand I need to respond, and have received the Long Form General Denial and the Calawyers Bill of Particulars from Seadragon, but I'm confused on some of what I'm reading in the case. 

 

--First of all, the papers say the account "hasn't been paid since on or about Aug 2010,"  and that date doesn't sound familiar to me. Is seems like if I recall correctly, my fiances went South about a year before that, and unfortunately several credit card payments went by the wayside as a means of survival. They have to have correct information, right? They can't just pull a date out of their hat?

 

--Can anyone tell me about how long this stuff takes before it actually goes to court when you fight it? I'm moving to Idaho in a few months and I highly doubt I'll be able to afford to come back for a court date.  :(

 

--Worst case: If I were to lose my case, which right now is just over $5,000.00 "together with interest thereon at the legal rate of 10% per annum from the charge off date of __________," how much would they get? Can they claim crazy legal fees like $50,000.00 just because they're mad I fought them?

 

--From what I've read on here, I need to keep a good calendar of any and all paperwork, dates, etc, but what costs of my own do I need to keep receipts of? I'm assuming filing and mail fees, does mileage count?

 

I appreciate any help and encouragement everyone can give me...I studied law enforcement in college, and thought I would be ok with all this legal speak, but it's been a few years and I realize that now that my head's spinning as I read the papers I was served today.  :(

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Aaauugghh! I tried to edit and it deleted my original post...so sorry, I'm not used to forums...

 

OK, I  started lurking last week when I got wind that a process server was hunting for me, and I was served the papers today for a lawsuit with Persolve, from a Best Buy card I defaulted on after the economy went south. I'm ready to fight, because all of this junk debt buying really irks me, especially when I struggle to pay for food and electricity at the moment, once my rent is paid. I read online that this company is full of scumbags, so I need all the help I can get.

 

I understand I need to respond, and have received the Long Form General Denial and the Calawyers Bill of Particulars from Seadragon, but I'm confused on some of what I'm reading in the case. 

 

--First of all, the papers say the account "hasn't been paid since on or about Aug 2010,"  and that date doesn't sound familiar to me. Is seems like if I recall correctly, my fiances went South about a year before that, and unfortunately several credit card payments went by the wayside as a means of survival. They have to have correct information, right? They can't just pull a date out of their hat?

 

--Can anyone tell me about how long this stuff takes before it actually goes to court when you fight it? I'm moving to Idaho in a few months and I highly doubt I'll be able to afford to come back for a court date.  :(

 

--Worst case: If I were to lose my case, which right now is just over $5,000.00 "together with interest thereon at the legal rate of 10% per annum from the charge off date of __________," how much would they get? Can they claim crazy legal fees like $50,000.00 just because they're mad I fought them? NO,, the most they can ask for in the amount plus any attorney fees and filings fees that the courts in your area allow.

 

--From what I've read on here, I need to keep a good calendar of any and all paperwork, dates, etc, but what costs of my own do I need to keep receipts of? I'm assuming filing and mail fees, does mileage count?

 

I appreciate any help and encouragement everyone can give me...I studied law enforcement in college, and thought I would be ok with all this legal speak, but it's been a few years and I realize that now that my head's spinning as I read the papers I was served today.  :(

Once you answer the complaint the discovery process will start.

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  • 4 weeks later...

Thank you all so much. I am back after almost 3 weeks of no computer and I couldn't afford to fix it right away, so I'm running short on time. I mailed the BOP to Persolve and they responded with this, I received it on the 6th of September:

 

"Plaintiff responds to Defendant's Request for Bill of Particulars. Plaintiff has requested additional documentation from Plaintiff's Assignor, Plaintiff's investigation is continuing and Plaintiff reserves the right to supplement its response to this request at a later date.

 

In compliance with Defendants Demand for Bill of Particulars, Plaintiff sets forth the following items on which this action is based:

 

Attached hereto as Exhibit "1"is a true and correct copy of a printout of Plaintiff's computer system reflecting Defendant's account created by Plaintiff utilizing the data which is input into Plaintiff's computer system by Plaintiff's employees and counsel, whose responsibility is to record any and all transactions which affect Defendant's account. Plaintiff maintains all of its account data in a computer system and had done so since inception. It is Plaintiff's business practice to enter each debit and/or credit applicable to a particular account, including Defendant's account, at or about the date such event occurred.

 

Plaintiff has requested additional documentation from the original creditor and Plaintiff's Assignor. Should Plaintiff receive any additional documentation, Plaintiff shall supplement this response to include any such documents that exist. Plaintiff additionally reserves the right to amend this Response in the future at any given time that Plaintiff may discover that it has inadvertently or otherwise omitted records which form the basis of its Response to the Bill of Particulars.

 

Dated: August 30, 2013"

 

Included was a "Verification" from their Chief FInancial Officer and Custodian of Records that the Plaintiff's Response was true, and they also included a screen shot of something from a computer. There are some dates in the screenshot but I can't find an original account number.

 

Does this mean I cannot file a general denial? Do I file something else instead? Tomorrow (Monday) is the 30th day. I have to file it at the courthouse tomorrow, but do the junk debt buyer's lawyers have to receive it by tomorrow as well?

 

Thank you in advance for any help you can give me.

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It looks like they have nothing and have even admitted that any account information came from their own employees.   Racecar or someone in California will have to explain the specifics but basically deny everything except your name and address and something that may say that you are not currently in the military. 

DO NOT BE LATE WITH YOUR ANSWER- if it is due on Monday then deliver it to the couthouse in person and get it filestamped.

 

You need to mail a copy of your answer to the JDB via certified mail.  If they included a request for admissions then your answer to the admissions must be sent to them within the time limit.  The time frame should be specified with the request.

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Thank you Texasrocker, I'm going to be there when the court opens at 8am tomorrow. I'm confused on the form for the answer though, because they DID provide verification, but it wasn't with the summons, it came later as a response to my BOP. Does that mean I can file a general denial still? Also, do I have to overnight this to Persolve's attorney as well or just mail it my the 30th day. Do I have to notarize anything?

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PM racecar or seadragon and ask them about the form.  I am not familiar with California procedure enough to guarantee absolute correct information. (Now is the time for you to delve into learning everything you can about California's and your court's procedures.)

 

You should always include a general denial.  

 

As I said, mail a copy of your answer, and anything else you may ever send, to the JDB attorney via certified mail.

The 30 days for you to answer the summons has nothing to do with them. 

 

The only thing you need to have notarized is an affidavit if one becomes necessary.

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Thank you 1stStep and TexasRocker so much! Things are now starting to make sense to me...I have a general denial form in a PM from Seadragon, I just thought it couldn't be used because they sent verification in response to the BOP demand. I've been reading the CA courts website though and I still can't do a general denial, because the case is over $1,000.00. My understanding is that I use the same form to answer, just instead of checking the deny everything box, I check "everything but..." and start listing everything paragraph that pertains to me except my name and address. (Nothing about the military was mentioned). I should be done with it soon and I'll post a copy of what I do up here. I don't know if anyone will be on late tonight, but if they are and anything looks like it needs to be improved upon, maybe they can give me a heads up before I print the final copy. Thanks again to all of you!
 

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This might be a dumb question, but I just don't want to miss anything...there are paragraphs in the summons that I know don't apply to me, such as the first couple that state that Persolve is doing business under a fictitious name, or that they have complied with all licensing requirements in CA, but then there are a couple that i'm not sure about.

 

Like paragraph 3: "Prior to the commencement of this action, Plaintiff's assignor, FFIF-ACM OPPORTUNITY FUND, LLC, the successor in interest to BEST BUY* ("Original Creditor"), for valuable consideration, assigned, transferred, and set over to Plaintiff, the within indebtedness of the Defendant(s) and Plaintiff is now the holder of the assigner rights in its chose in action of said claims." 

 

That doesn't even make sense to me, did they mean for the end to read "choice of action of said claims"? Now, do I deny this since I don't even know if this is a real account in my name, or is it just referring to the fact that all accounts were transferred? I'm thinking I have to deny because if mentions "the within indebtedness of Defendants."

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And this one really throws me: "The true names and capacities of Defendant DOES 1 through 100, inclusive, are unknown to Plaintiff at this time, who therefore sues said Defendant by such fictitious name. Plaintiff is informed and believes, and thereon alleges, that each Defendant names as a DOE is responsible for each and every obligation hereinafter set forth.

 

DENY?!?! My name was on the summons? So do I deny this paragraph? Are they going to try to sue me again later, like under my maiden name of something?

 

So frustrated....and angry....among other things!

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I HAVE NOT SEEN YOUR COMPLAINT SO THIS IS JUST AN EXAMPLE

 

A verified answer must admit or deny each and every paragraph of the complaint, and must also contain a verification signed by you "your the defendant" stating that you have read the answer and everything contained therein is true and correct to the best of your 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.

 

Now you need to file your verified answer to plaintiffs complaint.

Answer the Complaint with Pleading Paper

 

 

DEFENDANT’S VERIFIED ANSWER TO VERIFIED COMPLAINT

NOW COMES Defendant usogirl and answers Plaintiff's Complaint as follows:

GENERAL ALLEGATIONS

1. Defendant admits the allegation in paragraph 1 of the Complaint that venue is proper.

 

2. Defendant Denies the allegations in paragraph 2 of the Complaint that Plaintiff is the legal owner of the debt.

 

3 Defendant admits that Plaintiff conducts business in the State of California, County of San Diego, and within the jurisdiction of this Court.

 

4. Defendant avers and alleges that each of the allegations contained in Paragraph 4 of the Complaint asserts principles of law, not fact, and that no answer is therefore required.

 

5. Defendant denies each and every allegation contained in paragraph 5 of the Complaint for want of knowledge or information.

 

FACTUAL ALLEGATIONS

What ever the factual allegations are admit or deny them

 

FIRST CAUSE OF ACTION Open Book Account

Defendant denies each and every allegation in paragraph 6 of the Complaint.

Defendant denies each and every allegation in paragraph 7 of the Complaint.

Defendant denies each and every allegation in paragraph 8 of the Complaint.

 

SECOND CAUSE OF ACTION Money Lent

Defendant denies each and every allegation in paragraph 9 of the Complaint.

Defendant denies each and every allegation in paragraph 10 of the Complaint.

Defendant denies each and every allegation in paragraph 11 of the Complaint

 

THIRD CAUSE OF ACTION Account Stated

Defendant denies each and every allegation in paragraph 12 of the Complaint.

Defendant denies each and every allegation in paragraph 13 of the Complaint.

Defendant denies each and every allegation in paragraph 14 of the Complaint

 

As to all remaining allegations of fact in the numbered or unnumbered parts of the complaint not specifically admitted, Defendant denies all such allegations. As to all remaining allegations which call for a legal conclusion, Defendant lacks sufficient knowledge or information to respond to such legal conclusions and, therefore, denies them

 

 

 

AS AND FOR DEFENDANT'S AFFIRMATIVE DEFENSES TO ALL CAUSES OF ACTION PURPORTED TO BE SET FORTH AGAINST DEFENDANT IN THE COMPLAINT HEREIN, DEFENDANT STATES AS FOLLOWS:

FIRST AFFIRMATIVE DEFENSE

l. Plaintiffs causes of action, and each of them, fail to state facts sufficient to constitute a cause of action.

 

SECOND AFFIRMATIVE DEFENSE

2. Said causes of action, and each of them, fail to state facts sufficient to constitute a cause of action as against Defendant.

 

THIRD AFFIRMATIVE DEFENSE

3. Said causes of action, and each of them, are barred, in whole or in part, by the defense of accord and satisfaction.

 

FOURTH AFFIRMATIVE DEFENSE

4. Said causes of action, and each of them, are barred, in whole or in part, by the defense of payment.

 

FIFTH AFFIRMATIVE DEFENSE

5. Said causes of action, and each of them, are barred in whole or in part, by the applicable statute of limitations.

 

WHEREFORE, Defendant prays for judgment as follows:

1) That' Plaintiff’s complaint and each cause of action thereof be dismissed with prejudice;

(2) That Plaintiff take nothing by Plaintiffs complaint;

(3) That Defendant be awarded its costs incurred herein, including and

(4) That the Court order such other and further relief for Defendant as the Court may deem just and proper.

 

Dated: September 15, 2013.

By usogirl

 

 

VERIFICATION

Defendant has read the foregoing Verified Answer and knows its contents .

I usogirl am a party to this action, and authorized to make this verification on my behalf.

I make this verification 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 law of the State of California that the

foregoing is true and correct.

 

 

PROOF OF SERVICE

POS-040 Proof of Service—Civil - California Courts - State of ...

www.courts.ca.gov/documents/fw001.pdf fee waiver

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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If the complaint is not verified, you can use a general denial.  The statute is confusing but I have underlined the pertinent parts:

 

CCP 431.30:

 

 (d) If the complaint is subject to Article 2 (commencing with
Section 90) of Chapter 5.1 of Title 1 of Part 1 or is not verified, a
general denial is sufficient.....

 

It does not matter if the BOP is verified, only if the complaint is verified must you deny each paragraph separately.

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