Recvd Request for Stmnt, Decl, etc - Next Steps? CA

[megan345]

Hello, thanks to everyone who posts here, I've learned quite a bit. I receved a summons a few weeks ago, but then all was quiet until a few days ago when I received the following

Notice to Attend Trial
Request for Statement of Witnesses and Evidence (20 days to respond)
Declaration in Lieu of direct Testimony and Authenticating Documentary Evidence (rubberstamped by T. V.)
Credit Card Account Agreement  (generic unsigned)
One Credit Card statement from Original Creditor
Bill of Sale to CA$H  from Wells Fargo, no reference to my account (nearly illegible). with attached Exhibit (print out with name, SS, account number, etc)

 

I'm not sure what to send / reply next. Perhaps a BOP? Trial is in less than 30 days. If a BOP is there a sample someone can point me to for wording, what should I ask for?

 

 

Some Background on the case:

 

1. Who is the named plaintiff in the suit?

    CA$CH, L$LC

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

    Mandar$ich Law

3. How much are you being sued for?

    $14K

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

    Well$ Farg0

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

    Subserved to pos box non-USPS

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

    Notice Left in Mail Box

 

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

    Yes, believe so.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

    They've sent some colllection letters, I called them a while ago to alert them of an address change

9. What state and county do you live in?

    Santa Clara

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

     Early 2011

11. What is the SOL on the debt?

     4 Years

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

    Status is Open, trial set for end of this month

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? 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 but was told on phone to court guy it's 40 days as it was subserved (is this true, he DID NOT sound sure?)
    First cause = Breach of Contract
    2nd cause = Acccunt Stated

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

    There were no exhibits attached

 

 

[megan345]

Update: I did some more research and found that a BOP should include the following:
 

http://www.creditinfocenter.com/legal/bill-of-particulars.shtml

  

• Agreement and/or contract of said account.
• Proof the plaintiff owns the account.
• List of items for which payment is being sought.
• List of dates associated with each item, transaction or service.
• List of charges per item, transaction or service.
• Means by which the plaintiff determined amount owed and for what.

Can I just use the Ventura form but add the requests listed above? Or? http://www.slideshare.net/LegalDocsPro/sample-demand-for-bill-of-particulars

 

Does it have to be on pleading paper, or will the Ventura form do?

Do i need to file it with the court?

 

phew, thank you

 

Should I add anything else? such as

[shellieh98]

How long ago were you served? I take it that you answered it correct? You said a few weeks ago, that hust seems awfully fast to have a trial date set. Are you sure it is not a case management conference? That is usually ehen they set the trial. 30 days, you don't have any time to conduct discovery.

I would send out tomorrow a BOP, while they gave you a bunch of stuff, they didnt give you all of the billing statements. Did they label the package of stuff a ccp96? Is the affidavit labeled a ccp98?

[shellieh98]

http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_id=992

Here is ca lawyers and sea dragons bill of particulars you can redact to fit your needs.

[SkippieB]

How long ago were you served? I take it that you answered it correct? You said a few weeks ago, that hust seems awfully fast to have a trial date set. Are you sure it is not a case management conference? That is usually ehen they set the trial. 30 days, you don't have any time to conduct discovery.

I would send out tomorrow a BOP, while they gave you a bunch of stuff, they didnt give you all of the billing statements. Did they label the package of stuff a ccp96? Is the affidavit labeled a ccp98?

 

 

My thoughts exactly.  Something doesn't sound quite right.  I live in California and have successfully fought two JDB lawsuits in the past year and there is no way that the courts would schedule a trial a "couple weeks" after you were served the summons-even if you were served by mail.  It doesn't work that way.  I can't even see them scheduling a case management conference that soon.  Usually it takes six to eight months to go to trial here in California.

 

Have you reviewed your Superior Court record to see what the registry of actions says.  I've never taken on CACH but I do know from all of the research I've done they do tend to submit a lot of evidence for even their defaults including credit card agreements.  So be prepared.

 

Carol-Lynn

[megan345]

Hi C

 

Yes, you're right, it's actually been a while since I received the summons, last week of May - trying to tow the line between being vague and proving enough details for the forum to be helpfull   I responded with a General Denial in early July, I noticed that a Short Cause trial went up on the court calendar a few days later. I didn't hear anything for a sometime, and received the package above last week. Taking all that into consideration it still seems awfully fast for the trial, 4 months from summons to trial? It's listed as Court Trial Short cause. They did file their complaint almost 8 months before I received the Summons, (I had moved).

 

The docs I received one is called a Disc-015 and has ccp Section 96, 97 on the corner of the form too. Yes, the Declaration says "pursuant to CCP 98"  in the title.

 

Thank you so much for the BOP. I'll fill it out now. Do I need to file this with the court or copy to Pleading paper?

 

I haven't reviewed the Superior Court Record to see Registry of Action in person, just online, should I request the docs from the clerk? Looks like since I filed my response a the next line item online is the CV Declaration. The credit card agreement they sent looks like it's photocopied from a brochure, dated the same year as mine would be but no signature page from me. Also the bill of Sale is a blurry fax that  refers to sale of charged off  Accounts attached, but they've attached a print out with my details (account no, SS#, etc) that clearly wasn't part of that original fax, as they're trying to link them - I suppose.

 

Thanks again

[Seadragon]

In the bay area they are pushing these cases through. I recommend reading ASTmedics and Homeless in Californias thread tonight mailing the Bill of Particulars tomorrow and getting ready for trial. It looks like you are in fast track litigation.

[megan345]

 Thank you Seadragon! I'm reading through their posts now, and mailing the BOP out in the AM. I'm wondering about the 20 days / witnesses request if I should start working on that soon. I received it about 9 days ago now. and trial in less then 30, this is going quickly.  Do I need to also send the CCP 96 or just the BOP?  Odd, shouldn't we have a CMC scheduled instead of Trial next - confused? Is it too late for any of this, should I contact an attorney? (Mr. Schwinn, same county)

[Anon Amos]

As far as responding to their ccp 96 request from you; you just need to answer it with one sentence: "WITNESSES AND EXHIBITS USED BY THE DEFENDANT WILL BE FOR IMPEACHMENT PURPOSES ONLY".

You needed to send them a ccp 96 request for witness and exhibit list as well. They would have to give you everything they plan to use against you in trial in their response to the list or be precluded from entering evidence. You are already late sending this (30 days before trial was the last day), but I would send it anyway, TODAY.

If they sent you the ccp 96 and the ccp 98; then it probably is a trial. Speaking of the ccp 98: you need to see if the declarant gave an address within 150 miles of the court and subpoena the declarant as well as oppose the ccp 98 (most people file an MIL to strike it). Also see if the ccp 98 testimony weas signed under the laws of perjury to CA.

You have some catching up to do to get up to speed.

[megan345]

Hi Everyone,

 

Thanks Anon Amos, I've sent the CCP 96, looks like I'll be sending the ccp 96 with the suggested reply as well thank you . The declarant gave an address is within 150 miles of the court, but lives out of state.  When can I subpeona him?

 

To oppose the CCP 98 i'll start researching the MIL. Not sure about the under the laws of pejury to CA part..I'll be doing some reading on this site tonight for these items. Thanks again.  -M

[Anon Amos]

Hi Everyone,

 

Thanks Anon Amos, I've sent the CCP 96,

*** had you already sent it, or did you just send it late?***

looks like I'll be sending the ccp 96 with the suggested reply as well thank you .

***Good; they like that statement***

The declarant gave an address is within 150 miles of the court, but lives out of state.  When can I subpeona him?

***20 days before trial (it should say that in the declaration). The fact the he is not a citizen of CA goes against the code***

 

To oppose the CCP 98 i'll start researching the MIL. Not sure about the under the laws of pejury to CA part..I'll be doing some reading on this site tonight for these items. Thanks again.  -

*** See the Target V. Rocha case for ccp 98 objections as well as Homeless in California's thread on objecting to this.

Look at the end of the ccp 98 declaration and see if the declarant says his testimony is under the laws of perjury in the state of California; that language needs to be on there or it is another reason to strike it in your MIL.

Good Luck...***

[megan345]

Yes, it was sent late, but it's out now.

CCP 98 going out tomorrow

Declaration does contain the wording "forgoing is true and correct under the laws of perjury...State of CA"

 

The subpoena, I'm sorry dumb question, does it have to be prior to the 20 days before the trial? Or within the 20 days leading up to the trial? Duh, I'll check the declaration again, I must've read these docs about 5 times each now.

 

Okay it says "i'm located in CO. Therefore, I authorize services to be accepted on my behalf within a reasonable period of time prior to trial in order to allow for necessary travel. Service will be accepted on my behalf at ...Oakland, CA"   What does that mean "reasonable period of time"? ugh

[Anon Amos]

Yes, it was sent late, but it's out now.

CCP 98 going out tomorrow

Declaration does contain the wording "forgoing is true and correct under the laws of perjury...State of CA"

 

The subpoena, I'm sorry dumb question, does it have to be prior to the 20 days before the trial? Or within the 20 days leading up to the trial? Duh, I'll check the declaration again, I must've read these docs about 5 times each now.

Within the 20 days up to the trial. I believe you have to give at least 2 days before but the sooner the better (just not before the 20 days).

 

Okay it says "i'm located in CO. Therefore, I authorize services to be accepted on my behalf within a reasonable period of time prior to trial in order to allow for necessary travel. Service will be accepted on my behalf at ...Oakland, CA"   What does that mean "reasonable period of time"? ugh

***Reasonable period would be 20 days up to the trial. (the statute says you must be at an address 20 days prior to trial, up until trial). They cannot authorize services to be accepted on their behalf because subpoena's have to be personally served (so you need to decide what to do about that)***.

[megan345]

Thanks for the details, I guess for now I have to decide. It seems like the best way to go about this is to be thorough, in other words subpoena the "witness". But, I'll have to consider cost as well. If anyone has a link to how to get this done, through process server, sheriff, etc. please PM me?. Could I ask the server not to leave it unless they can hand it to him directly? Things are starting to come into focus. Thank you everyone

[noname2]

Thanks for the details, I guess for now I have to decide. It seems like the best way to go about this is to be thorough, in other words subpoena the "witness". But, I'll have to consider cost as well. If anyone has a link to how to get this done, through process server, sheriff, etc. please PM me?. Could I ask the server not to leave it unless they can hand it to him directly? Things are starting to come into focus. Thank you everyone

I would use a process server, and expressly instruct them not to serve the subpoena on anyone except the witness. If the declarant's address is in the Bay Area, I've had success using one fairly cheap process server: PM me if you're interested.

[megan345]

thank you noname

[megan345]

Oooh, received a bop denial, distefano vs. hall was cited "plaintiff not pursing items of an account...is instead seeking a final sum owed as stated on the monthly bill your client received"

 

Already sent ccp 96 though, should I compel the bop?

[Anon Amos]

Already sent ccp 96 though, should I compel the bop?

You don't have enough time; with the trial date in less than a month. Hopefully they won't object to your ccp 96 as untimely, and will give you their evidence.

[megan345]

Thanks Anon Amos, I'll leave that for now. Right now, I'm a little lost in terms of preparing a subpeona, any links to threads or other resources would be very helpful

[Anon Amos]

Thanks Anon Amos, I'll leave that for now. Right now, I'm a little lost in terms of preparing a subpeona, any links to threads or other resources would be very helpful

You might look in ASTMedics thread how I beat midlands, and HomelessInCalifornia's thread has some information on it. See Code of Civil Procedures sections 1985 - 1987.

the subpoena you can use is form: SUBP-001 you can download it at www.courtinfo.ca.gov

[megan345]

Thanks again I think I have what I need there, I've been quietly reading, researching, and getting organized. Making lists of documents, and motions that I'll concentrate on next. Motion in Limine seems next. Also, I noticed something interesting on my Bill of Sale today, The date it was signed by the OC representative and the Notary public, was 7 days after the fax date, it's confusing. I have scanned it if anyone cares to see it. Also, it's another state, apparently this is OR, not CA, not sure if that's where this card was opened or not.

 

Also, Calif rules of court say Motions in Limine but be submitted 20 days before trial, but then I found this in local rules: 8 D Under Service and Lodging of Documents:

 

D.

SERVICE AND LODGING OF DOCUMENTS

Unless the case was settled at the Mandatory Settlement Conference or dismissed in full prior thereto, or unless otherwise ordered by the Court, the following items must be lodged in the department of the trial judge or, if none, with the Court’s calendar secretary, and served on all other parties by noon on the last court day before the date set for trial:

(1) all in limine motions;

(2)exhibit lists, except impeachment exhibits;

[Anon Amos]

Thanks again I think I have what I need there, I've been quietly reading, researching, and getting organized. Making lists of documents, and motions that I'll concentrate on next. Motion in Limine seems next. Also, I noticed something interesting on my Bill of Sale today, The date it was signed by the OC representative and the Notary public, was 7 days after the fax date, it's confusing. I have scanned it if anyone cares to see it. Also, it's another state, apparently this is OR, not CA, not sure if that's where this card was opened or not.

***I wouldn't mind seeing that with any of your thoughts or arguments attached, PM me if you want.*****

 

Also, Calif rules of court say Motions in Limine but be submitted 20 days before trial, but then I found this in local rules: 8 D Under Service and Lodging of Documents:

 

D.

SERVICE AND LODGING OF DOCUMENTS

Unless the case was settled at the Mandatory Settlement Conference or dismissed in full prior thereto, or unless otherwise ordered by the Court, the following items must be lodged in the department of the trial judge or, if none, with the Court’s calendar secretary, and served on all other parties by noon on the last court day before the date set for trial:

(1) all in limine motions;

(2)exhibit lists, except impeachment exhibits;

*****In situations like this your court will allow their local rule to supersede the State rules.***